A Win for Sexual Harassment Policies


Lawyers in New Jersey just won a much needed defense to sexual harassment charges that are brought against business entities and their principals.

Ilda Aguas v. State of New Jersey is a landmark employment law decision that offers victories for both employers and workers. While the court formally recognized a significant affirmative defense for businesses with strong anti-harassment policies, it also adopted a broad definition of “supervisor” in terms of vicarious liability.

The History of Sexual Harassment

In 1980, the Equal Employment Opportunity Commission (EEOC) first recognized sexual harassment as a form of sex discrimination under Title VII of the Civil Rights Act. The U.S. Supreme Court first addressed the elements of a sexual harassment claim six years later.

On the state level, New Jersey enacted the Law Against Discrimination (NJLAD) in 1945, which prohibits differential treatment based on sex and a number of other protected traits. In 1993, the New Jersey Supreme Court was one of the first state courts in the country to hold that an employer may be vicariously liable for sexual harassment committed by a supervisor that results in a hostile work environment.

Under both state and federal law, sexual harassment can take many forms. Quid pro quo sexual harassment occurs when an employer demands a sexual favor as a condition of employment or in order to achieve a job benefit, such as raise or promotion. More commonly, sexual harassment leads to a hostile work environment claim, which occurs when an employee suffers demeaning or offensive behavior based on his or sex that unreasonably interferes with his or her work environment.

Harassment in the Modern Workplace

Today, many businesses have policies and procedures to address sexual harassment in the workplace. However, it still persists. In FY 2014, 6,862 charges were filed with the EEOC alleging sexual harassment. Of course, the majority of victims don’t take legal action. Studies suggest that between 40-70 percent of women and 10-20 percent of men have been sexually harassed in the workplace. For employers, the statistics are understandably concerning, particularly because they can be held vicariously liable for the conduct of their supervisors in some circumstances.

The NJ Supreme Court’s Decision

In Ilda Aguas v. State of New Jersey, the NJ Supreme Court addressed the impact of an employer’s anti-harassment policy on an employee’s claims of negligence or recklessness and vicarious liability. Citing existing federal precedent, the justices concluded that having a strong anti-harassment policy in place can shield businesses from liability in hostile work environment sexual harassment case, so long as the worker did not suffer an adverse employment action. In reaching its decision, the court reasoned that the affirmative defense furthers the legislative goals of the NJLAD by “motivating employers to maintain effective anti-harassment policies and by encouraging employees to take prompt action against harassing supervisors in accordance with those policies.”

The case, however, was not a total win for employers. The court also considered the definition of a supervisor for purposes of a hostile work environment sexual harassment claim. Rather than incorporate the narrow definition recently articulated by the Supreme Court, the state’s highest court elected to adopt the EEOC’s broader approach. Accordingly, an individual will be considered a supervisor under the NJLAD for the purposes of vicarious liability if that employee has the authority to take or recommend tangible employment actions or directs the complainant’s day-to-day activities in the workplace.

You can find a more in-depth discussion of the decision on the Scarinci Hollenbeck Business Law News Blog.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.


A Win for Sexual Harassment Policies