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Total Articles: 8

Court Adopts New Test in Harassment Cases

Professionals strive to maintain safe and welcoming workplaces for employees and guests. To further this goal, many firms have incorporated into their employment manuals anti-harassment policies and training. Yet, despite such precautionary steps, an employer cannot guarantee an environment free of wrongdoers. In the unfortunate event of a claim, it is up to the court to determine whether an employer that took proactive measures to protect employees is nonetheless liable in employment related harassment claims.

Boon to New Jersey Employers: State Supreme Court Confirms that Federal Faragher/Ellerth "Affirmative Defense" Now Applies to Sexual Harassment Claims Under State Law

Executive Summary: On February 11, 2015, New Jersey's Supreme Court formally decided an important issue left open for nearly two decades concerning New Jersey's Law Against Discrimination (LAD). In Aguas v. State of New Jersey, __ N.J. __, No. 072467 (2015), the state's highest court definitively held that an employer can rely upon the company's anti-harassment policy as an "affirmative defense" to an employee's claims of negligence or vicarious liability brought under the LAD. In doing so, the Court aligns the standard for employer liability under the LAD with that set forth by the U.S. Supreme Court in its landmark 1998 decisions, Faragher v. City of Boca Raton and Burlington Indus. v. Ellerth. A copy of the decision is available here.

Off Duty Conduct May Subject Employer to Sexual Harassment Liability.

The plaintiff complained of sexual harassment by her co-worker – an offer of money for sex – while both were off duty. Shortly thereafter, the plaintiff was allegedly given reduced hours, and subjected to poor treatment by her co-workers and supervisors.

Statute of Limitations for Hostile Work Environment Claim Began to Run When Employee Left Workplace.

The plaintiff left the workplace due to alleged sexual and disability harassment on January 11, 2002, and never returned, claiming that ongoing, unremedied harassment made it impossible for him to return to work. His paid leave expired on July 19, 2002, and his employment was terminated the same day. On March 25, 2004, the plaintiff filed a claim alleging hostile work environment and other violations under the Law Against Discrimination (LAD). The plaintiff claimed the two-year statute of limitations for the hostile work environment claim began to run on the date of his termination.

Summary Judgment for Employer Upheld Where Employer Had Clear, Well-Published Policy against Sexual Harassment and Acted Promptly to Investigate and Remediate Offending Conduct

This decision reminds employers yet again of the critical importance of creating, publishing and then following a comprehensive policy for sexual harassment and other complaints of discrimination.

New Jersey Employers Liable for Co-Worker Sexual Harassment in the Absence of an Effective Anti-Harassment Policy.

In the first New Jersey state court decision of its kind, the New Jersey Appellate Division has held that an employer can be liable under state law for an employee's sexual harassment at the hands of a co-worker in the absence of an effective anti-harassment policy, even if the employer was unaware of the harassment.

Court Finds Persistent Dating Attempts Not Equivalent to Sexual Harassment.

Despite the spate of recent pro-employee hostile work environment cases, the Supreme Court issued an antidote in Godfrey, holding that the plaintiffs, two female seminary students, were not subject to a hostile environment when a 60-year old seminary resident pursued them in quest of a date, where his behavior involved no sexual language, touching, or inappropriate comments or suggestions.

Hostile Work Environment Claim Dismissed Where Employer Took Prompt Action Following Report, and Had a Comprehensive Harassment Policy in Place.

The Appellate Division here affirmed dismissal of a sexual harassment/hostile work environment claim where the employer took prompt action to investigate and remedy the situation and the employer had in place a well-publicized, comprehensive anti-harassment policy, which the employer took affirmative steps to disseminate through an orientation program.