One of the recurring themes of this blog has been to emphasize NJ's pride of place as a jurisdiction in which the employment rights of employees are zealously protected, to a greater degree than nearly any other state in the country. That took a hit last week with the NJ Supreme Court's decision in Aguas_v._State.
The decision was a 4- 2 split decision, and the debate between majority and dissenters was arcane. It was slightly amusing as well, with the majority maintaining that it was not cutting back on employee rights, and the dissent just as just as steadfastly insisting that it was. Be that as it may, the important takeaway is this: the court explicitly adopted the US Supreme Court's Faragher/Ellerth standard in hostile environment sexual harassment cases. That standard provides employers with an affirmative defense if they establish and implement an adequate anti-harassment policy.
This standard has been the law in the federal courts since 1998. Its adoption in NJ is noteworthy because it has long been an accepted truth among plaintiff employment lawyers that in the Garden State you do not sue in federal court unless there is a mandatory reason to go to federal court. State court is almost always a friendlier forum for employment plaintiffs. Now it is clear that the law will be no more favorable for employees in state court than in federal, and that is a big change.
The court also clarified the definition of “supervisor” under the Law Against Discrimination, a basic term that inexplicably has not been defined by the court before now.
Two practical takeaways: (1) for employers, be sure that your company has an adequate anti-harassment policy; (2) for employees, if your employer has a policy, follow it.
This decision is likely to be subject to ongoing comment, and we will bring you further information that may be of interest.