New Jersey Sexual Harassment Law: Revisiting Aguas v. State of New Jersey

In a 2015 case entitled Aguas v. State of New Jersey, the New Jersey Supreme Court adopted the federal standard regarding employer liability for workplace sexual harassment. For the first time, the New Jersey Supreme Court held that an employer can avoid liability in situations where the workplace sexual harassment did not result in any tangible employment action if the employer can show (1) it has strong anti-harassment policies and effective reporting mechanisms and (2) the plaintiff unreasonably failed to take advantage of the policies and reporting procedures.

The Aquas ruling dramatically changed the manner in which sexual harassment cases have been litigated in New Jersey.  It has also served as a valuable reminder to all New Jersey employers of the importance of having strong anti-harassment policies in place to protect employees from sexual harassment.

The plaintiff in Aguas v. State of New Jersey, Ilda Aguas, was a corrections officer in the New Jersey Department of Corrections.  During her employment, Ms. Aguas began to experience objectionable sexual harassment at the hands of her supervisor, Lieutenant Darryl McClish. On multiple occasions, McClish both verbally and physically harassed Ms. Aguas, such as by asking her to go to a motel with him, forcing himself on her in imitation of a “lap dance”, and holding Ms. Aguas’s arms behind her back while pressing his genitals against her body and asking “what are you going to do?” Ms. Aguas objected to this behavior directly to McClish, who refused to cease the sexually harassing behavior. Ms. Aguas was additionally harassed by two other supervisors.

After experiencing severe distress resulting from the behavior, Ms. Aguas reported the sexual harassment to her Captain and Acting Chief, who encouraged her to submit a formal report of harassment. She declined to do so in fear of retaliation and was later warned by a coworker not to file the report.

Despite the lack of a formal report, the Department of Corrections initiated an investigation into the allegations, which were ultimately found to be unsubstantiated. Ms. Aguas voluntarily quit her employment with the State of New Jersey and filed a lawsuit against the State of New Jersey after the conclusion of the investigation.

Initially, a trial court granted summary judgment in favor of the State of New Jersey and dismissed Ms. Aguas lawsuit. The judge held that although Ms. Aguas may have experienced workplace sexual harassment, the State of New Jersey was not liable because the Department of Corrections maintained anti-harassment policies. Upon appeal, the Appellate Division affirmed. Certiorari was granted and the landmark decision in Aguas v. State of New Jersey was penned.

The New Jersey Supreme Court went through the history of sexual harassment law in New Jersey, including an extensive recitation of the court’s seminal Lehman v. Toys ‘R’ Us decision in 1993.  The court’s decision sought to clarify the proper legal analysis for courts to follow in assessing whether an employer is vicariously liability for workplace sexual harassment and negligent for allowing sexual harassment to occur at its workplace.

The court also reviewed federal case law concerning employer defenses to claims of sexual harassment that occur in its work environment.  After a lengthy analysis, the New Jersey Supreme Court expressly adopted the availability of the “Faragher-Ellerth” employer affirmative defense to claims sexual harassment as set forth in the United State Supreme Court cases, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton. In these cases, the United State Supreme Court held that in a case of sexual harassment, an employer may assert an affirmative defense to vicarious liability by demonstrating that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise” provided that the employer has not taken an adverse tangible employment action against the plaintiff employee.

The defense ensures that an employer must make a reasonable effort to prevent and address sexual harassment in the workplace, while also requiring that an employee also reasonably seeks to utilize the policies set forth by their employer.  The availability of the “Faragher-Ellerth” defense has resulted in employer’s anti-harassment policies being even in more important in determining whether the liability of employer’s in sexual harassment cases.

In Ms. Aguas’s case, the New Jersey Supreme Court suggested that the anti-harassment policies and subsequent actions of the Department of Corrections regarding Aguas’s complaints of harassment in an important factual analysis to be determined by a court and jury. In explaining whether an employer’s anti-harassment policy is effective, the Court relied upon the standards set forth in Gaines v. Bellino which dictate five factors of anti-harassment policies that employers must fulfill. The Court held that the trial court’s summary dismissal of Ms. Aguas’s case to be error as it did not apply the facts of her case to the Gaines analysis.  The Supreme Court specifically noted that “paper only” anti-harassment polices are not enough.  The anti-harassment policy must be effective and remedial.

Additionally, the New Jersey Supreme Court also defined the term “supervisor” for purposes of a claim for vicarious liability against an employer for sexual harassment. As to this question, the New Jersey Supreme Court found that if the sexual harassing supervisor had the authority to either: (1) take or recommend tangible employment actions affecting the complaining employee, or (2) to direct the complainant’s day-to-day activities in the workplace, he or she qualifies as the complainant’s supervisor.

Ultimately, the Supreme Court reversed the dismissal in Aguas, and remanded to the trial court for further proceedings in accordance with the newly defined standards. Though Aguas helped to clarify the case law surrounding this practice area, it also demonstrated just how complex cases of sexual harassment in the workplace may become. To help navigate this complexity, it is imperative that you seek advice and counsel from an experienced New Jersey sexual harassment lawyer if you or a family member are the victim of sexual harassment.


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