Employment discrimination or harassment claims under the New Jersey Law Against Discrimination usually involve actions by specific employees, supervisors, managers, or executives. In order to make a successful New Jersey employment discrimination claim, a plaintiff must establish that the employer is legally responsible for the actions of that person or those people. This is known as “vicarious liability.” The New Jersey Appellate Division recently ruled in favor of a plaintiff in her hostile work environment lawsuit, reversing the trial court’s summary judgment for the defendant. The appellate court held that the plaintiff had raised a question as to whether her alleged harasser had acted within his authority as a supervisor when he told the plaintiff to “leave and don’t come back.”
Hostile work environment is a type of sexual harassment that occurs when one or more people engage in unwelcome sexual conduct to the point that a reasonable person would consider it to render the workplace hostile. An employer can be held vicariously liable for a hostile work environment perpetrated by any employee, even if they do not have authority over the plaintiff, as long as the employer knew or should have known about the harassment and failed to act.
The New Jersey Supreme Court issued a ruling in 2015 that defined a rule for determining whether vicarious liability should apply to an employer in sexual harassment and similar claims, when the alleged harasser was in a position of authority over the plaintiff. It based this rule on the Ellerth/Faragher analysis, named after two Supreme Court rulings from 1998, Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton. The Ellerth/Faragher analysis states that a defendant can avoid vicarious liability if it can establish three elements:
1. It “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”;
2. The plaintiff “unreasonably failed to take advantage of” the remedies offered by the employer; and
3. The plaintiff was not subject to any “tangible employment action” by the alleged harasser.
The Ellerth/Faragher defense allows an employer to avoid vicarious liability for the alleged actions of someone authorized to act on the employer’s behalf. When that person has taken some sort of action against the plaintiff’s employment, the employer can no longer deny that they should be held liable for that person’s actions.
The plaintiff in the recent Appellate Division case worked as a sales trainee at a car dealership. She alleged that her immediate supervisor began making sexual advances via text message. She rejected all of them. After several weeks, he allegedly confronted her at work, and then told her to “leave and don’t come back.” She took this to mean she was fired.
The defendant successfully asserted New Jersey’s version of the Ellerth/Faragher defense in the trial court, resulting in summary judgment. The employer had policies in place dealing with sexual harassment, which the plaintiff did not use. The appellate court, however, found that the supervisor’s statement to the plaintiff “raise[d] a genuine issue of material fact as to whether [she] was actually terminated by him at that time.” This leaves the “tangible employment action” part of the defense unresolved, so the court remanded the case to the trial court.
The employment lawyers at the Resnick Law Group advocate for the rights of workers in New Jersey and New York. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation to discuss your case with a member of our experienced and knowledgeable team.