The Supreme Court’s Feb. 11 decision in Aguas v. State of New Jersey, 220 N.J. 494 (2015), has been extensively analyzed, summarized, criticized and lauded. The much-anticipated decision clarified two critical issues in determining employer liability for supervisor harassment under the Law Against Discrimination.
First, to the delight of employers, the court adopted the Ellerth/Farragher affirmative defense from federal jurisprudence and held that, where the employee alleges employer vicarious liability and there has been no tangible employment action, the employer may avoid liability by proving “first, that [it] exercised reasonable care to prevent and to correct promptly sexually harassing behavior; and second, that the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid harm.” Aguas, 220 N.J. at 525.
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