Ilda Aguas v. State of New Jersey (072467) ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Ilda Aguas v. State of New Jersey (A-35-13) (072467)
Argued September 23, 2014 -- Decided February 11, 2015
PATTERSON, J., writing for a majority of the Court.
In this appeal, the Court considers two issues that were generally addressed, but not expressly decided, in
Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 592 (1993), and subsequent decisions: (1) the impact of an employer’s
anti-harassment policy on an employee’s claims of negligence or recklessness and vicarious liability; and (2) the
definition of a supervisor for purposes of a hostile work environment sexual harassment claim.
In 1999, the Department of Corrections (DOC) instituted a written policy prohibiting discrimination in the
workplace, and mandated that all employees be trained with respect to it. The policy incorporates procedures with
regard to reporting, investigating, and remediating claims of misconduct, and “encourages” employees to promptly
report incidents of harassment. Plaintiff, a corrections officer, was hired in 2004, and received a copy of the policy.
Plaintiff was supervised by Darryl McClish, the highest-ranking supervisor during her shift. McClish
oversaw the work of sixty employees, and was assisted by two male officers, Sergeant Hill and Sergeant Sands.
Plaintiff alleges that, beginning in October 2009, McClish sexually harassed her on several occasions, and, on one
occasion, Hill made inappropriate comments toward her and directed a female officer to pat-frisk her. The parties
dispute the timing of plaintiff’s reports of sexual harassment, and plaintiff did not file a written complaint with the
DOC. On March 8, 2010, the DOC’s Equal Employment Division (EED) advised plaintiff that it had initiated an
investigation of her verbal complaint of sexual harassment. After several weeks and twenty interviews, the EED
investigator ultimately concluded that plaintiff’s allegations were unsubstantiated.
On March 10, 2010, two days after the EED commenced its investigation, plaintiff filed this action alleging
that McClish and Hill subjected her to a hostile work environment based on her gender, and that the State retaliated
against her because of her objections to that harassment, in violation of the New Jersey Law Against Discrimination,
N.J.S.A. 10:5-1 to -49 (LAD). Plaintiff did not allege that the DOC took any tangible employment action against
her. In its answer, the State pled, as affirmative defenses, its “prompt and remedial action” in response to plaintiff’s
claim, its policy against discrimination, harassment and retaliation, and its “thorough investigation” of plaintiff’s
complaint. Following discovery, the trial court granted summary judgment to the State. The court held that plaintiff
had presented a prima facie showing that she had been subjected to severe and pervasive sexual harassment, and that
the conduct created a hostile or abusive work environment for her. It concluded, however, that the State had
established an affirmative defense, determining that the DOC’s policy required the filing of a written complaint by
an employee. The trial court thus held that Plaintiff had failed to take steps required by the policy.
Plaintiff appealed, and an Appellate Division panel affirmed the trial court’s grant of summary judgment.
The panel agreed with the trial court that the State had established an affirmative defense, and rejected plaintiff’s
claim that the State was liable under the agency principles of Restatement § 219(2)(d), holding that plaintiff had
failed to show that McClish used his authority to control her day-to-day working environment to aid his sexual
harassment of her. The Court granted plaintiff’s petition for certification. 216 N.J. 86 (2013).
HELD: For claims alleging vicarious liability for supervisory sexual harassment under Restatement § 219(2)(d), the
Court adopts as the governing standard the test set forth by the United States Supreme Court in Burlington Industries v.
Ellerth, 524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). The employer in a
hostile work environment sexual harassment case may assert as an affirmative defense 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.
1. In Lehmann v. Toys ‘R’ Us, Inc., this Court held that an employer may be vicariously liable, in accordance with
principles of agency law, for sexual harassment committed by a supervisor that results in a hostile work
environment. 132 N.J. 587, 592 (1993). The agency principles adopted by the Court in Lehmann are set forth in
Restatement § 219, and, since this Court’s decision in Lehmann, courts have recognized two primary categories of
claims against employers for sexual harassment committed by their employees under Restatement § 219: (1) direct
causes of action against the employer for negligence or recklessness under Restatement § 219(2)(b), and (2) claims
for vicarious liability under Restatement § 219(2)(d). (pp. 17-22)
2. The Court turns first to plaintiff’s claim for negligence and recklessness under Restatement § 219(2)(b). In
Gaines v. Bellino, 173 N.J. 301, 312-14 (2002), the Court identified five factors that are relevant to a negligence
claim against an employer in a sexual harassment case. Under the Gaines analysis, the DOC’s anti-harassment
policy is relevant to the elements of plaintiff’s Restatement § 219(2)(b) cause of action. Thus, if plaintiff’s
negligence and recklessness claim is challenged on remand, or is tried before a jury, evidence of the State’s anti-
harassment policy should be considered in accordance with the factors identified in Gaines. (pp. 23-25)
3. With regard to claims pursuant to Restatement § 219(d)(2), the Court’s prior jurisprudence strongly supports the
availability of an affirmative defense, based on the employer’s creation and enforcement of an effective policy
against sexual harassment, in a vicarious liability claim based on Restatement § 219(d)(2). Although the Court did
not delineate in Lehmann the precise role that an anti-sexual harassment policy should play in a vicarious liability
sexual harassment case brought under Restatement § 219(2)(d), it foresaw a fact-specific inquiry in which the
employer’s implementation of a meaningful anti-harassment policy, or its failure to do so, would be, in many cases,
an important factor. The Court’s subsequent authority affirms this principle. See, e.g., Cavuoti v. New Jersey
Transit Corp., 161 N.J. 107, 113, 120-21 (1999); Gaines, supra, 173 N.J. at 320. (pp. 25-30)
4. As in other LAD analyses, the Court also considers federal law construing Title VII with respect to vicarious
liability claims premised on principles of agency. In Ellerth and Faragher, the Supreme Court integrated the agency
principles of Restatement § 219(2)(d) with the legislative objective of deterring sexual harassment by promoting
effective anti-harassment policies, and adopted a two-pronged affirmative defense to liability or damages. This
Court concurs with the Supreme Court that the Ellerth/Faragher analysis provides a fair and practical framework for
supervisor sexual harassment cases, and, accordingly, expressly adopts the Ellerth/Faragher analysis for such
matters in which a hostile work environment is claimed pursuant to the LAD, and no tangible employment action is
taken. Thus, in further proceedings in this case, the State may avoid vicarious liability under Restatement §
219(2)(d) by demonstrating by a preponderance of the evidence that the DOC exercised reasonable care to prevent
and correct promptly any sexually harassing behavior, and that plaintiff unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the DOC, or to avoid harm otherwise. (pp. 31-42)
5. This matter also presents a second issue, namely the definition of a supervisor for purposes of claims based on
sexual harassment giving rise to a hostile work environment. The Court in Lehmann did not expressly define
“supervisor” for these purposes. It alluded, however, to the “power delegated to [a supervisor] to control the day-to-
day working environment,” and distinguished between a “supervisor” and the employer’s “upper management.”
Lehmann, supra, 132 N.J. at 620, 622-23. The Court thus suggested that the term supervisor included a broader
range of managers than the senior executives who set policy for an employer. In its decision today, the Court,
therefore, declines to adopt the more restrictive definition of “supervisor” recently prescribed by the Supreme Court
majority in Vance v. Ball State University, 133 S. Ct. 2434, 2443 (2013). The Court agrees instead with the Equal
Employment Opportunity Commission, and adopts its more expansive definition that includes not only employees
granted the authority to make tangible employment decisions, but also those placed in charge of the complainant’s
daily work activities. Thus, an allegedly harassing employee is the complainant’s supervisor if that employee had
the authority to take or recommend tangible employment actions affecting the complaining employee, or to direct
the complainant’s day-to-day activities in the workplace. (pp. 42-48)
6. If the trial court is called upon to determine plaintiff’s punitive damages claim on remand, it should assess
whether plaintiff has shown by clear and convincing evidence that the DOC committed “egregious conduct,” and if
so, whether she has presented clear and convincing evidence that “upper management” either participated directly in
sexual harassment, or showed “willful indifference.” The court should assess such claims in accordance with the
Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17 (PDA) and this Court’s prior holdings. (pp. 48-51)
2
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.
JUSTICE ALBIN, DISSENTING, joined by CHIEF JUSTICE RABNER, expresses the view that the
LAD, under Lehmann, provided greater protection than federal law in hostile work environment cases, and that
Lehmann did not authorize an affirmative defense applied to supervisory liability under the Restatement § 219(2)(d)
approach.
JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON and JUDGE CUFF (temporarily
assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion in
which CHIEF JUSTICE RABNER joins.
3
SUPREME COURT OF NEW JERSEY
A-35 September Term 2013
072467
ILDA AGUAS,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
Defendant-Respondent.
Argued September 23, 2014 – Decided February 11, 2015
On certification to the Superior Court,
Appellate Division.
Paul R. Castronovo argued the cause for
appellant (Castronovo & McKinney, attorneys;
Mr. Castronovo and Sara Fern Meil, of
counsel; Mr. Castronovo, Ms. Meil, and Megan
Frese Porio, on the briefs).
Jessica S. Allen, Assistant Attorney
General, argued the cause for respondent
(John J. Hoffman, Attorney General of New
Jersey, attorney; Lewis A. Scheindlin,
Assistant Attorney General, of counsel; Gail
R. Beran, Deputy Attorney General, on the
briefs).
Thaddeus P. Mikulski, Jr., argued the cause
for amicus curiae National Employment
Lawyers Association of New Jersey.
Mark A. Saloman argued the cause for amicus
curiae Employers Association of New Jersey
(Proskauer Rose, attorneys; Mr. Saloman,
Nicholas M. Tamburri, and John J. Sarno, on
the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
1
In Lehmann v. Toys ‘R’ Us, Inc., this Court held that an
employer may be vicariously liable, in accordance with
principles of agency law, for sexual harassment committed by a
supervisor that results in a hostile work environment. 132 N.J.
587, 592 (1993). Citing Restatement (Second) of Agency § 219(2)
[hereinafter Restatement], the Court held that when a supervisor
acts beyond “the scope of his or her employment, the employer
will be vicariously liable if the employer contributed to the
harm through its negligence, intent, or apparent authorization
of the harassing conduct, or if the supervisor was aided in the
commission of the harassment by the agency relationship.” Id.
at 624.
In this case, plaintiff Ilda Aguas (Aguas), a corrections
officer, alleges that two of her supervisors subjected her to
sexual harassment in the workplace. Aguas asserted negligence
and vicarious liability claims premised on the New Jersey Law
Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD). She
appeals from the Appellate Division’s decision affirming the
trial court’s grant of summary judgment dismissing her claims.
Aguas’s appeal requires that we determine two issues that
were generally addressed, but not expressly decided, in Lehmann
and subsequent decisions by this Court. First, we address the
impact of an employer’s anti-harassment policy on an employee’s
negligence or recklessness claim under Restatement § 219(2)(b),
2
and on a vicarious liability claim under Restatement §
219(2)(d). We reaffirm that an employer’s implementation and
enforcement of an effective anti-harassment policy, or its
failure to maintain such a policy, is a critical factor in
determining negligence and recklessness claims under Restatement
§ 219(2)(b).
For claims alleging vicarious liability for supervisory
sexual harassment under Restatement § 219(2)(d), we adopt as the
governing standard the test set forth by the United States
Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742,
765, 118 S. Ct. 2257, 2270, 141 L. Ed. 2d 633, 655 (1998) and
Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S. Ct.
2275, 2292-93, 141 L. Ed. 2d 662, 689 (1998). Under the
Ellerth/Faragher analysis, the employer in a hostile work
environment sexual harassment case may assert as an affirmative
defense to vicarious liability 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. Ellerth, supra, 524 U.S.
at 765, 118 S. Ct. at 2270, 141 L. Ed. 2d at 655; Faragher,
3
supra, 524 U.S. at 807-08, 118 S. Ct. at 2292-93, 141 L. Ed. 2d
at 689.
The Ellerth/Faragher affirmative defense derives from
agency principles adopted by this Court in Lehmann. It furthers
the LAD’s purpose of eliminating sexual harassment in the
workplace by motivating employers to maintain effective anti-
harassment policies, and by encouraging employees to take prompt
action against harassing supervisors in accordance with those
policies. Lehmann, supra, 132 N.J. at 626. The affirmative
defense is consonant with this Court’s prior jurisprudence and
advances the legislative goal of the LAD.
Second, we consider the factors that trial courts should
apply when determining whether an employee, accused of sexually
harassing another employee, is that individual’s supervisor -- a
term undefined in the LAD and our prior case law -- for purposes
of a hostile work environment sexual harassment claim. We hold
that an allegedly harassing employee is the complainant’s
supervisor if that employee had the authority to take or
recommend tangible employment actions affecting the complaining
employee, or to direct the complainant’s day-to-day activities
in the workplace.
So that the trial court may decide this case in accordance
with these standards, we reverse the Appellate Division’s
4
affirmance of summary judgment dismissing Aguas’s claims and
remand this matter to the trial court for further proceedings.
I.
Effective on December 16, 1999, the New Jersey Department
of Corrections (DOC) instituted a written policy prohibiting
discrimination in the workplace and mandated that all employees
be trained with respect to it. The policy states a commitment
“to providing every State employee and prospective employee with
a work environment free from discrimination or harassment.” It
proscribes “sexual (or gender-based) harassment of any kind[.]”
Among other prohibited behaviors, the policy bars “[u]nwanted
physical contact such as intentional touching, grabbing,
pinching, brushing against another’s body or impeding or
blocking movement,” as well as “[v]erbal, written, or electronic
sexually suggestive or obscene comments, jokes or
propositions[.]”
The DOC policy imposes special responsibilities on
supervisors. It charges supervisors to ensure “a work
environment that is free from any form of
discrimination/harassment” and subjects supervisors who fail to
meet its requirements with sanctions that may include
termination of employment.
The DOC policy incorporates “the State of New Jersey Model
Procedures with regard to reporting, investigating, and where
5
appropriate, remediating claims of discrimination/harassment,”
pursuant to N.J.A.C. 4A:7-3.2.1 It requires the designation of a
responsible individual or individuals to handle employee
discrimination and harassment complaints. The policy
“encourages” employees subjected to harassment to “promptly
report the incident(s) to either a supervisor, or directly to
the [DOC’s] Equal Employment Division/Affirmative Action
Officer,” without specifying that the employee must report the
incident in writing. The policy mandates that the DOC conduct
investigations of such complaints “in a prompt, thorough and
impartial manner” that respects “the privacy of all persons
involved.”
The DOC Commissioner is charged with making a final
determination as to whether a policy violation has occurred. If
a complaint is substantiated, the DOC is required to “take
prompt and appropriate remedial action to stop the behavior and
deter its reoccurrence,” including interim separation of the
alleged harasser from the complainant employee pending a final
determination. The DOC policy bars retaliation against a
complaining employee.
1 N.J.A.C. 4A:7-3.1 generally sets forth the State’s policy
prohibiting hostile work environment harassment and other forms
of discrimination in the workplace. The State policy governs
all State employees and all employment practices, and mandates
that every State agency implement procedures for internal
complaints of harassment. N.J.A.C. 4A:7-3.1(a), (g).
6
In 2004, Aguas was hired by the DOC as a Corrections
Officer Recruit. The following year, she became a Senior
Corrections Officer, assigned to the third shift, 10:00 p.m. to
6:00 a.m., at the Edna Mahan Correctional Facility for Women
(Edna Mahan). Aguas acknowledged that she received a copy of
the DOC anti-discrimination and harassment policy, but denied
receiving training with respect to that policy. However, Aguas
twice instituted written complaints pursuant to the DOC’s anti-
discrimination policy, the first a discrimination complaint
filed in 2005 against a female co-worker, and the second a
workplace violence complaint filed in 2007 against a different
female co-worker. The DOC found both complaints to be
unsubstantiated.
Aguas was supervised by Darryl McClish (McClish), an Area
Lieutenant who has worked for the DOC since 1989 and at Edna
Mahan since 2009. During the third shift, McClish was the
highest-ranking supervisor at the correctional facility,
overseeing the work of sixty employees. He was assisted in that
role by two male officers, Sergeant Robin Hill (Hill) and
Sergeant Eric Sands (Sands).
Aguas alleges that McClish sexually harassed her on several
occasions, beginning in October 2009. She asserts that on one
evening that month, as she completed her shift and left the
facility, McClish stood next to her very closely and asked “are
7
we going to a telly,” which she interpreted as a reference to a
motel. Aguas contends that McClish then made a comment about
another officer, Lieutenant Rudolph Walz (Walz), suggesting that
Aguas had a romantic relationship with Walz. McClish denies
this allegation.
Later the same evening, Aguas took her handcuffs home in
contravention of the DOC policy, and McClish called and demanded
her immediate return to the correctional facility. Aguas
alleges that when she returned with the handcuffs, McClish
sniffed the handcuffs and asked, “[w]here you been? If you just
want to borrow them, let me know.” She contends that McClish
then “sat in [her] lap face-to-face while blowing his whistle
and gave her a ‘lap dance’ by grinding his pelvis into [her] and
shaking his face close to her face.” Aguas alleges that McClish
persisted in this behavior despite her warning to stop, and that
another corrections officer and a lieutenant on the scene
purposely looked in the other direction while the conduct was
occurring. McClish agrees that he ordered Aguas to return to
the facility with the handcuffs, but otherwise denies Aguas’s
allegations regarding this incident, and denies that he touched
Aguas with his waist, hip or groin on any occasion.
Aguas next alleges that later in the same month, McClish
massaged her shoulders, out of view of any other employees, when
he and Aguas were conducting nightly rounds of the corrections
8
facility. She asserts that he then “stuck out his buttocks
toward [Aguas], flexed his arms and said, ‘[d]o me a favor and
take my radio off my hip. I worked out and I’m sore,’” a
direction that she declined to follow. McClish denies both
allegations.
Aguas contends that a few days after that incident, McClish
commented twice, in her presence, about her alleged relationship
with Walz. She asserts that immediately after she complained to
McClish about the comments, McClish approached her from behind,
“put her in a hold with her hands behind her back and pulled up
to her shoulder blades.” According to Aguas, McClish then “bent
[Aguas] over the table with his genital area touching [her]
buttocks and repeatedly said, ‘[w]hat are you going to do?’”
Aguas asserts that she immediately kicked and head-butted
McClish repeatedly and that the two fell to the floor, prompting
McClish to release her. She alleges that McClish then “started
bobbing like a boxer” and repeated his question, “[w]hat are you
going to do?”
According to Aguas, when she returned from a trip to the
bathroom a few minutes later, “McClish got very close behind
[her] and start[ed] dancing, whooping, waving his arms, and
blowing his whistle while repeatedly saying ‘[w]oohoo!’ as if
[she] was a stripper.” Aguas claims that McClish then made a
derogatory comment about Walz. She asserts that when she
9
confronted McClish about this behavior days later, telling
McClish that his alleged actions made her feel uncomfortable and
“like a whore, like a slut,” he responded that he was not sorry.
McClish denies these allegations in their entirety, and
maintains that the conversations recounted by Aguas did not
occur.
Aguas contends that on January 23, 2010, she set off the
alarm in the metal detector at Edna Mahan. According to Aguas,
Hill asked her whether she had “piercings in [her] breasts
because I know you don’t need an underwire bra,” and directed a
female officer to repeatedly pat-frisk Aguas. Hill testified
that, in compliance with the DOC policy, he ordered a female
officer to pat-frisk Aguas after she failed to clear the metal
detector.2 Hill denied making the remark alleged by Aguas.
Finally, Aguas contends that Sands subjected her to “hyper-
scrutiny,” selectively reprimanding her for uniform violations
committed by several officers, for smoking outside on her break
with a sweater around her shoulders, and for not carrying a red
pen.
2 The DOC policy then in effect required officers to pass through
a metal detector before entering the facility, and provided that
if an individual failed to clear the metal detector after four
attempts, security would be notified and the officer would be
pat-frisked by another officer of the same gender.
10
The parties dispute the timing of Aguas’s reporting of her
sexual harassment allegations. Aguas contends that she reported
McClish’s harassment to Walz on several occasions beginning in
October 2009. Walz testified, however, that Aguas reported to
him only the conversation with Hill involving the metal
detector, and the excessive scrutiny of her uniform, and that
she did not complain to him at any time about alleged sexual
harassment by McClish.
Aguas reported her allegations that McClish sexually
harassed her to Captain and Acting Chief Robert Ryan (Ryan), the
highest officer in command, and Ryan advised her to meet with
Assistant Administrator Helen Adams (Adams). Aguas asserts that
she rejected Adams’s advice to report the harassment in writing
because she feared retaliation. She declined the DOC’s
alternative suggestion that she participate in a group meeting
with the DOC officials, McClish, Sands and Hill. Aguas contends
that Adams gave her forms to prepare a written report and a
referral to the facility’s psychologist.
According to Aguas, she became distraught at the meeting
with Adams and was subsequently hospitalized for a migraine and
placed on medical leave. A few days later, Aguas received two
text messages from a fellow Edna Mahan officer, which she
interpreted as a warning not to file a written complaint. Aguas
did not file a written complaint with the DOC.
11
On March 8, 2010, the DOC’s Equal Employment Division (EED)
advised Aguas in writing that it had initiated an investigation
of her verbal complaint of sexual harassment. Over the next
several weeks, an EED investigator interviewed Aguas, McClish,
Walz and seventeen other witnesses, and obtained statements from
others. The EED investigator summarized her findings in a
report dated April 21, 2010. The investigator concluded that
Aguas’s allegations were unsubstantiated, and advised Aguas of
that conclusion in writing.
II.
On March 10, 2010, two days after the EED commenced its
investigation of her complaints, Aguas filed this action. She
named the State as the sole defendant and asserted claims under
the LAD for compensatory and punitive damages and other relief.
Aguas alleged that the sexual harassment by McClish and Hill
subjected her to a hostile work environment based on her gender,
and that the State retaliated against her because of her
objections to that harassment, in violation of the LAD. Aguas
did not allege that the DOC took any tangible employment action
against her.
In its answer, the State pled, as affirmative defenses, its
“prompt and remedial action” in response to Aguas’s claim, its
policy against discrimination, harassment and retaliation, and
its “thorough investigation” of Aguas’s complaint.
12
Following discovery, the trial court granted the State’s
motion for summary judgment. The court held that Aguas had
presented a prima facie showing that she had been subjected to
severe and pervasive sexual harassment, and that the conduct
created a hostile or abusive work environment for her. It
concluded, however, that the State had established an
affirmative defense. The court noted that the DOC had a written
policy against discrimination, harassment and retaliation that
included a procedure for reporting through the EED, a procedure
that Aguas had used in the past. The trial court construed the
policy to require the filing of a written complaint by an
employee. It held that Aguas had failed to take steps required
by the policy. The trial court therefore dismissed Aguas’s LAD
sexual harassment claims, based on theories of negligence and
recklessness, as well as vicarious liability. Due to its
rejection of Aguas’s claims for compensatory damages, the trial
court also granted summary judgment dismissing Aguas’s claim for
punitive damages.3
Aguas appealed, and an Appellate Division panel affirmed
the trial court’s grant of summary judgment. The panel
concluded that the State exercised due care in its investigation
3 In a decision that was not appealed, the trial court also
dismissed Aguas’s retaliation claim.
13
of Aguas’s claim and concurred with the trial court’s dismissal
of Aguas’s negligence and recklessness claim. It also agreed
with the trial court that the State had established an
affirmative defense, by indisputable proof, based upon the DOC’s
adoption and implementation of a policy against discrimination
and sexual harassment, a policy that Aguas admittedly received
in writing annually. The panel rejected Aguas’s claim that the
State was liable under the agency principles of Restatement §
219(2)(d), holding that Aguas had failed to show that McClish
used his authority to control her day-to-day working environment
to aid his sexual harassment of her. It also affirmed the trial
court’s dismissal of Aguas’s claim for punitive damages.
We granted Aguas’s petition for certification. Aguas v.
State, 216 N.J. 86 (2013).
III.
Aguas argues that the Appellate Division created a novel
test, in contravention of this Court’s decision in Lehmann and
public policy, which requires an employee to file a formal
report under the employer’s policy before pursuing legal
remedies. She concedes that an employer may present evidence of
its implementation and enforcement of an explicit policy against
sexual harassment and its provision of an effective
investigatory and remedial procedure in defense of a negligence
claim. She denies that a plaintiff in a sexual harassment case
14
has the burden of proof, and instead contends that the
employer’s policy gives rise to an affirmative defense as to
which the defendant has the burden of proof. Aguas argues that
in any event, the State cannot establish such a defense based on
the record in this case.
Aguas contends that the Appellate Division misapplied
Lehmann by declining to find the State vicariously liable based
on principles of agency. She argues that under Lehmann, when a
supervisor sexually harasses a subordinate, the employer is
presumed liable whether or not the subordinate reports the
harassment, and that the Ellerth/Faragher analysis does not
govern cases involving supervisors under the LAD. Finally,
Aguas contends that the Appellate Division improperly affirmed
the dismissal of her claim for punitive damages because she
established an underlying violation of the LAD.
The State counters that the DOC implemented an effective
anti-sexual harassment policy, enforced that policy and took
immediate remedial action in response to Aguas’s complaint, and
that it was Aguas’s duty to utilize the grievance procedure. It
argues that sexual harassment by a supervisor is not a per se
violation of the LAD except where a tangible employment action
is taken against the employee who has alleged harassment. The
State asserts that the United States Supreme Court’s
Ellerth/Faragher analysis applies to cases involving
15
supervisors, and that unless the supervisor’s harassment prompts
a tangible employment action and the plaintiff seeks equitable
relief, the employer may assert an affirmative defense under
that analysis.
Amicus curiae National Employment Lawyers Association of
New Jersey (NELA) argues that the Appellate Division contravened
Lehmann and other authority by holding that McClish, the
highest-level manager on his shift at Edna Mahan, lacked
sufficient authority to be considered a supervisor for purposes
of vicarious liability. NELA asserts that the Appellate
Division improperly focused on McClish’s authority to discipline
Aguas and affect her economic status, rather than on his
capacity to oversee her day-to-day work. NELA argues that New
Jersey law does not require an employee who is a victim of
sexual harassment to formally report the harassment in writing
in order to trigger an investigation and remediation.
Amicus curiae Employers Association of New Jersey (EANJ)
urges the Court to hold that an employer cannot, as a matter of
law, be liable for a hostile work environment under the LAD if
it took prompt remedial action in response to an employee’s
complaint of sexual harassment. EANJ argues that the DOC
satisfied its duty of care by implementing and enforcing a
detailed procedure. It asserts that Aguas should be barred from
recovering under the LAD because she unreasonably failed to take
16
advantage of preventive and corrective measures that were
available to her.
IV.
A.
We first consider the impact of the DOC’s anti-harassment
policy on Aguas’s two claims for sexual harassment giving rise
to a hostile work environment: her direct claim for negligence
and recklessness against the State based on Restatement §
219(2)(b), and her claim that the State is vicariously liable
for sexual harassment committed by McClish and Hill under
Restatement § 219(2)(d). The decisions that defined these
claims provide the setting for our analysis.
In Lehmann, supra, this Court recognized sexual harassment
in the workplace as a form of discrimination that is prohibited
by the LAD. 132 N.J. at 601 (citing Meritor Sav. Bank v.
Vinson, FSB, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49
(1986); Erickson v. Marsh & McLennan Co., 117 N.J. 539, 555-56
(1990)). The Court recognized two forms of sexual harassment
that are actionable under the LAD. The first is “quid pro quo
sexual harassment,” in which “an employer attempts to make an
employee’s submission to sexual demands a condition of his or
her employment.” Ibid. Aguas does not assert a quid pro quo
harassment claim in this case.
17
The second cause of action for sexual harassment, at issue
here, is a claim for “hostile work environment sexual
harassment.” Ibid. To prove this claim, a plaintiff must show
that the harassment “(1) would not have occurred but for the
employee’s gender; and it was (2) severe or pervasive enough to
make a (3) reasonable woman believe that (4) the conditions of
employment are altered and the working environment is hostile or
abusive.” Id. at 603-04 (emphasis omitted).
As the Court identified the elements of a hostile work
environment sexual harassment claim in Lehmann, it also
addressed the issue of employer liability for sexual harassment
by a supervisor or co-employee. Id. at 615-24. It held that
“the employer is directly and strictly liable for all equitable
damages and relief” to the extent that an employee subjected to
discrimination or sexual harassment seeks equitable remedies,
that is, restoration “to the terms, conditions, and privileges
of employment the employee would have enjoyed but for the
workplace discrimination or harassment.” Id. at 617. With
respect to claims for damages, however, the Court declined to
hold an employer strictly liable for sexual harassment committed
by its employee. Ibid. Instead of strict liability, the Court
adopted as the measure of employer liability a fact-sensitive
standard derived from the law of agency. Id. at 620.
18
In its rejection of strict liability, the Court relied on
Meritor, then the United States Supreme Court’s sole authority
on hostile work environment sexual harassment cases. Id. at
618-19 (citing Meritor Sav. Bank, supra, 477 U.S. at 72, 106 S.
Ct. at 2408, 91 L. Ed. 2d at 63).4 In Meritor, supra, the United
States Supreme Court majority declined to impose strict
liability on employers in hostile work environment harassment
cases and instead invoked the agency principles set forth in
Restatement §§ 219-237. 477 U.S. at 69-70, 72, 106 S. Ct. at
2407-08, 91 L. Ed. 2d at 61, 63. In a concurring opinion,
Justice Marshall urged the adoption of a strict liability
standard in both quid pro quo and hostile work environment
cases. Id. at 74-78, 106 S. Ct. at 2409-11, 91 L. Ed. 2d at 64-
66 (Marshall, J., concurring). Justice Stevens joined both
4 The Court “has frequently looked to federal precedent governing
Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e
to § 2000e-17 (‘Title VII’), as ‘a key source of interpretive
authority.’” Id. at 600 (quoting Grigoletti v. Ortho Pharm.
Corp., 118 N.J. 89, 97 (1990)); see also Quinlan v. Curtiss-
Wright Corp., 204 N.J. 239, 261-63 (2010). That rule is not
absolute; this Court has declined to follow federal law when
that law sharply diverges from prior authority construing the
LAD. See, e.g., Alexander v. Seton Hall Univ., 204 N.J. 219,
232-35 (2010) (declining to follow United States Supreme Court’s
approach to wage discrimination claims in Ledbetter v. Goodyear
Tire & Rubber Co., 550 U.S. 618, 127 S. Ct. 2162, 167 L. Ed. 2d
982 (2007), in light of “settled prior case law” contrary to the
Supreme Court’s holding.) Thus, we evaluate the analysis
adopted by federal courts construing Title VII to determine
whether that analysis furthers the objectives of the LAD and
comports with our prior holdings.
19
opinions because he shared the majority’s rejection of strict
liability and the concurring opinion’s construction of Title
VII. Id. at 73, 106 S. Ct. at 2409, 91 L. Ed. 2d at 64
(Stevens, J., concurring).
Contrary to the argument of our dissenting colleagues, who
contend that in Lehmann the Court “declined to follow” the
Meritor majority in favor of Justice Marshall’s strict liability
approach, post at ___ (slip op. at 9-10), the Court actually
embraced the agency analysis of the majority in Meritor. It
concurred “with Justice Stevens that there is no inherent
contradiction between the majority’s adoption of agency
principles and Justice Marshall’s observation that a
supervisor’s delegated authority often goes beyond the power to
hire and fire.” Lehmann, supra, 132 N.J. at 619. The Court
noted:
We recognize that although we have
declined to hold employers strictly liable for
hostile work environment sexual harassment by
supervisors, we have created a standard that
may often result in employers being held
vicariously liable for such harassment. We
note that there is an important difference
between strict liability and vicarious
liability under agency law. Under a strict
liability standard, an employer would always
be liable for supervisory hostile work
environment sexual harassment, regardless of
the specific facts of the case. We think that
in some cases strict liability would be unjust
–- for example, “where a supervisor rapes one
of his subordinates in the workplace.”
20
[Id. at 623-24 (emphasis in original) (quoting
Lehmann v. Toys ‘R’ Us, Inc., 255 N.J. Super.
616, 661 (App. Div. 1992) (Skillman, J.A.D.,
dissenting)).]
The agency principles adopted by the Court in Lehmann are set
forth in Restatement § 219, which recognizes four exceptions to
the general rule that an employer is not liable for its employee’s
conduct beyond the scope of his or her employment:
1. A master is subject to liability for the
torts of his servants committed while acting
in the scope of their employment.
2. A master is not subject to liability for
the torts of his servants acting outside the
scope of their employment, unless:
(a) the master intended the conduct or
the consequences, or
(b) the master was negligent or reckless,
or
(c) the conduct violated a non-delegable
duty of the master, or
(d) the servant purported to act or to
speak on behalf of the principal and
there was reliance upon apparent
authority, or he was aided in
accomplishing the tort by the existence
of the agency relation.
[Restatement § 219.]
As the Court noted in Lehmann, supra, the agency principles
of Restatement § 219 “are sufficiently well-established to
provide employers with notice of their potential liability, and
also sufficiently flexible to provide just results in the great
21
variety of factual circumstances presented by sexual harassment
cases and to accomplish the purposes of the LAD.” 132 N.J. at
619.
Since this Court’s decision in Lehmann, our courts have
recognized two primary categories of claims against employers
for sexual harassment committed by their employees under
Restatement § 219. The first is a direct cause of action
against the employer for negligence or recklessness under
Restatement § 219(2)(b). See, e.g., Gaines v. Bellino, 173 N.J.
301, 312-14 (2002). The second is a claim for vicarious
liability under Restatement § 219(2)(d). See ibid. Although
direct claims for negligence or recklessness under Restatement §
219(2)(b) and claims for vicarious liability under Restatement §
219(2)(d) are often discussed in tandem, they are analytically
distinct from and independent of one another. When both are
pled in a sexual harassment action, as they are in this case,
the two claims must be addressed separately.
Guided by our jurisprudence and agency principles adopted
as the benchmark for employer liability, we consider in turn the
relevance of the DOC’s anti-harassment policy to Aguas’s
negligence and recklessness claim based on Restatement §
219(2)(b), and the role of that policy in Aguas’s vicarious
liability claim premised upon Restatement § 219(2)(d).
B.
22
As the parties agree, the DOC’s anti-harassment policy is
central to the determination of Aguas’s claim for negligence and
recklessness under Restatement § 219(2)(b). The negligence
standard imposes on Aguas the burden to prove that the State
failed to exercise due care with respect to sexual harassment in
the workplace, that its breach of the duty of due care caused
the plaintiff’s harm, and that she sustained damages. See
generally, Komlodi v. Picciano, 217 N.J. 387, 409 (2014);
Robinson v. Vivirito, 217 N.J. 199, 208 (2014) (citing Jersey
Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594
(2013); Weinberg v. Dinger, 106 N.J. 469, 484 (1987)).
In Gaines, supra, the Court identified five factors that
are relevant to a negligence claim against an employer in a
sexual harassment case. 173 N.J at 313.
Those factors include[] the existence of: (1)
formal policies prohibiting harassment in the
workplace; (2) complaint structures for
employees’ use, both formal and informal in
nature; (3) anti-harassment training, which
must be mandatory for supervisors and
managers, and must be available to all
employees of the organization; (4) the
existence of effective sensing or monitoring
mechanisms to check the trustworthiness of the
policies and complaint structures; and (5) an
unequivocal commitment from the highest levels
of the employer that harassment would not be
tolerated, and demonstration of that policy
commitment by consistent practice.
[Ibid. (citing Lehmann, supra, 132 N.J. at
620).]
23
Applying that standard to the Restatement § 219(2)(b) negligence
claim before it, the Court found that because of the
deficiencies in the employer’s policy, a genuine issue of
material fact barred summary judgment with respect to two of the
factors relevant to a negligence claim against an employer under
Restatement § 219(2)(b). Id. at 315-17, 319.
The Court further noted that Lehmann had recognized that
“the existence of effective preventative mechanisms may provide
evidence of due care on the part of the employer.” Id. at 314
(citing Lehmann, supra, 173 N.J. at 621-22). It observed that
in Lehmann, the Court declined “to hold that the absence of such
mechanisms, or any part of them, automatically constituted
negligence, and [] similarly rejected the converse proposition
that the presence of such mechanisms categorically demonstrated
the absence of negligence.” Ibid. (citing Lehmann, supra, 132
N.J. at 621-22). As the Court stated in Gaines, however, “[t]he
efficacy of an employer’s remedial program is highly pertinent
to an employer’s defense.” Ibid.
Under the Gaines analysis, the DOC’s anti-harassment policy
is relevant to the elements of Aguas’s Restatement § 219(2)(b)
cause of action. If Aguas’s negligence and recklessness claim
under Restatement § 219(2)(b) is challenged in a dispositive
motion on remand, or is tried before a jury, evidence of the
24
State’s anti-harassment policy should be considered in
accordance with the factors identified in Gaines.
C.
Under Restatement § 219(d)(2), an employee may assert that
the employer is vicariously liable for sexual harassment
committed by its employee because the sexual harasser purported
to act on the employer’s behalf and “there was reliance upon
[his or her] apparent authority,” or because the harasser “was
aided in [his or her misconduct] by the existence of an agency
relation[ship]” with his or her employer. See Lehmann, supra,
132 N.J. at 619.
In Lehmann, the Court held that a vicarious liability claim
under Restatement § 219(2)(d) “requires a detailed fact-specific
analysis” and stated a four-part test for the factfinder:
1. Did the employer delegate the authority
to the supervisor to control the situation of
which the plaintiff complains . . . ?
2. Did the supervisor exercise that
authority?
3. Did the exercise of authority result in
a violation of [the LAD]?
4. Did the authority delegated by the
employer to the supervisor aid the supervisor
in injuring the plaintiff?
[Id. at 620 (citation omitted).]
25
If each of these questions are answered in the affirmative,
“then the employer is vicariously liable for the supervisor’s
harassment under [Restatement] § 219(2)(d).” Ibid.
This Court’s prior jurisprudence does not address in detail
the analytical framework under which an employer’s anti-
harassment policy may be considered in a hostile work
environment sexual harassment claim involving a supervisor.
Nonetheless, that jurisprudence strongly supports the
availability of an affirmative defense, based on the employer’s
creation and enforcement of an effective policy against sexual
harassment, in a vicarious liability claim based on Restatement
§ 219(d)(2).
First, the Restatement provision at the heart of the
Court’s analysis in Lehmann sets forth agency principles that
directly implicate an employer’s policy, or its lack of a
policy, against sexual harassment in the workplace. See id. at
619 (citing Restatement § 219(2)(d)). The existence and
enforcement of a policy charging supervisors with ensuring a
harassment–free workplace is central to the questions raised by
Restatement § 219(2)(d): whether a harassing supervisor
“purport[s] to act or to speak on behalf of the principal,”
whether “there was reliance upon [that supervisor’s] apparent
authority,” and whether a harasser was “aided in accomplishing”
26
the harassment by “the existence of the agency relation.”
Restatement § 219(2)(d).5
Second, in rejecting strict liability, the Court in
Lehmann, supra, clearly envisioned that an employer would be
permitted to argue that vicarious liability should not be
imposed in the circumstances of the individual case. See 132
N.J. at 624 (explaining that “[u]nder agency law, an employer’s
liability for a supervisor’s sexual harassment will depend on
the facts of the case”).
Third, the Court held that any legal test governing
vicarious liability claims should motivate employers to create
and enforce a policy against harassment. Id. at 626. The Court
observed that an effective legal test allows employees “to know
5 Our dissenting colleagues argue that Model Jury Charge (Civil)
2.25 demonstrates that New Jersey law rejects an affirmative
defense in a supervisory sexual harassment claim against an
employer. Post at ___ (slip op. at 5-7). Following Lehmann,
this Court has never addressed the jury charge that should be
given in a supervisory sexual harassment case. If, as the
dissent suggests, the Model Jury Charge endorses a strict
liability test in cases such as this, then the charge is
inconsistent with Lehmann, Cavuoti and Gaines. See Lehmann,
supra, 132 N.J. at 617-20; Gaines, supra, 173 N.J. at 314;
Cavuoti, supra, 161 N.J. at 120-21. In fact, the jury charge
cited by the dissent derives from the Lehmann Court’s adoption
of the inquiry set forth in Restatement § 219(2)(d): whether the
supervisor “purported to act or to speak on behalf of the
principal and there was reliance upon apparent authority, or was
aided in accomplishing the tort by the existence of the agency
relation.” Restatement § 219(2)(d). The Ellerth/Faragher
affirmative defense, which directly addresses that question,
should be included in our Model Charge.
27
their rights in a given set of circumstances,” and permits
“employers to set policies and procedures that comply with that
test.” Id. at 603. Noting that “[c]ourtrooms are not the best
place to prevent or remedy a hostile work environment,” id. at
625, the Court observed:
The most important tool in the prevention
of sexual harassment is the education of both
employees and employers. Consensus among
employees and employers should be the goal.
We think that providing employers with the
incentive not only to provide voluntary
compliance programs but also to insist on the
effective enforcement of their programs will
do much to ensure that hostile work
environment discrimination claims disappear
from the workplace and the courts.
[Id. at 626.]
The Court’s intention that its legal test motivate
employers to implement and enforce “voluntary compliance
programs” strongly signals that such compliance programs, if
effective and enforced, may give rise to an affirmative defense
to an LAD claim. Ibid.
Thus, although the Court did not delineate in Lehmann the
precise role that an anti-sexual harassment policy should play
in a vicarious liability sexual harassment case brought under
Restatement § 219(2)(d), it foresaw a fact-specific inquiry in
which the employer’s implementation of a meaningful anti-
harassment policy, or its failure to do so, would be, in many
cases, an important factor. See id. at 620, 622-24.
28
The Court’s subsequent authority affirms this principle.
In Cavuoti v. New Jersey Transit Corp., a case involving the
standard for an award of punitive damages against an employer in
supervisor sexual harassment litigation, the Court reiterated
that an employer’s anti-harassment policy is a significant
factor in such cases. 161 N.J. 107, 113, 120-21 (1999). This
Court commented that “like the [United States] Supreme Court we
have afforded a form of a safe haven for employers who
promulgate and support an active, anti-harassment policy.” Id.
at 120-21. The Court further observed:
A company that develops policies
reflecting a lack of tolerance for harassment
will have less concern about hostile work
environment or punitive damages claims if its
good-faith attempts include periodic
publication to workers of the employer’s anti-
harassment policy; an effective and practical
grievance process; and training sessions for
workers, supervisors, and managers about how
to recognize and eradicate unlawful
harassment.
[Id. at 121.]
Finally, in Gaines, supra, the Court expressly confirmed
the availability of an affirmative defense to vicarious
liability based on an effective policy against sexual
harassment. It held that “[a] defendant is entitled to assert
the existence of an effective anti-sexual harassment workplace
policy as an affirmative defense to vicarious liability;
however, material issues of disputed fact in the context of a
29
motion record can deny a defendant summary dismissal based on
that defense.” 173 N.J. at 320.
Notwithstanding that clear language, our dissenting
colleagues inexplicably assert that the Court “never hint[ed]
that an affirmative defense applied to supervisory liability
under the Restatement § 219(2)(d) approach.” Post at ___ (slip
op. at 7). The dissent also asserts that in Gaines, the Court
stated only that an affirmative defense is available to an
employer in a negligence case under Restatement § 219(2)(b).
Post at ___ (slip op. at 8). In fact, the Court expressly
recognized in Gaines an affirmative defense to a Restatement §
219(2)(d) claim for vicarious liability. See Gaines, supra, 173
N.J. at 320; see also Godfrey v. Princeton Theological Seminary,
196 N.J. 178, 200 (2008) (stating that “[t]he means employed by
an institution to deter harassment, and the enforcement of those
means, may be considered when assessing that institution’s
vicarious liability”).
Thus, the Court’s prior case law provides important
guidance with respect to this issue. In Lehmann, Cavuoti and
Gaines, the Court acknowledged the value of effective anti-
harassment policies in combatting sexual harassment in the
workplace, and recognized that employers will be motivated to
implement and enforce such policies if their policies provide a
defense to a claim of vicarious liability. See Gaines, supra,
30
173 N.J. at 320; Cavuoti, supra, 161 N.J. at 120-21; Lehmann,
supra, 132 N.J. at 619, 626.
As in other settings involving the LAD, we consider federal
law construing Title VII with respect to this issue. In Ellerth
and Faragher, the United States Supreme Court addressed Title
VII vicarious liability claims premised on principles of agency.
These cases, which had not been decided when this Court decided
Lehmann, represent part of the evolution in federal law that has
occurred as employer anti-harassment policies have become more
prevalent in the workplace.
Ellerth and Faragher arose from a supervisor’s alleged
sexual harassment of a subordinate, which gave rise to a hostile
work environment.6 The Supreme Court confirmed that Restatement
§ 219(2)(d) provides the analytical framework for supervisory
sexual harassment cases because “[t]he agency relationship
affords contact with an employee subjected to a supervisor’s
sexual harassment, and the victim may well be reluctant to
accept the risks of blowing the whistle on a superior.”
6 In Ellerth, an employee alleged that she was subjected to
sexual harassment by a vice president of the company that
employed her. Ellerth, supra, 524 U.S. at 747, 118 S. Ct. at
2262, 141 L. Ed. 2d at 644. In Faragher, a lifeguard sued the
municipality for which she worked, alleging that her immediate
supervisors sexually harassed her. Faragher, supra, 524 U.S. at
780-81, 118 S. Ct at 2280, 141 L. Ed. 2d at 672.
31
Faragher, supra, 524 U.S. at 803, 118 S. Ct. at 2291, 141 L. Ed.
2d at 686.
The Supreme Court noted, however, that the proper analysis
“calls not for a mechanical application of indefinite and
malleable factors set forth in the Restatement . . . but rather
an inquiry into the reasons that would support a conclusion that
harassing behavior ought to be held within the scope of a
supervisor’s employment, and the reasons for the opposite view.”
Id. at 797, 118 S. Ct. at 2288, 141 L. Ed. 2d at 682. The
Supreme Court further observed that the agency principles it
espoused must be consonant with Meritor, in which it had
declined to impose strict liability on employers in supervisor
sexual harassment cases. Id. at 804, 118 S. Ct. at 2291, 141 L.
Ed. 2d at 686 (footnote omitted); see also Ellerth, supra, 524
U.S. at 755, 118 S. Ct. at 2266, 141 L. Ed. 2d at 649. In
Faragher, supra, the Court explained that “there is obviously
some tension between [Meritor’s] holding and the position that a
supervisor’s misconduct aided by supervisory authority subjects
the employer to liability vicariously; if the ‘aid’ may be the
unspoken suggestion of retaliation by misuse of supervisory
authority, the risk of automatic liability is high.” Faragher,
supra, 524 U.S. at 804, 118 S. Ct. at 2291, 141 L. Ed. 2d at 686
(footnote omitted).
32
The Supreme Court identified two “basic alternatives” by
which Meritor’s rejection of strict liability could be
reconciled with the Restatement’s analysis: a requirement that
a plaintiff provide proof that the supervisor affirmatively
invoked his or her authority, or the recognition of “an
affirmative defense to liability in some circumstances, even
when a supervisor has created the actionable environment.”
Ibid. The Court rejected the first alternative, noting the
vagueness and impracticality such a test:
Application of the standard is made difficult
by its malleable terminology, which can be
read to either expand or limit liability in
the context of supervisor harassment. On the
one hand, a supervisor’s power and authority
invests his or her harassing conduct with a
particular threatening character, and in this
sense, a supervisor always is aided by the
agency relation. See Meritor, 477 U.S. at 77,
106 S. Ct. at 2410, 91 L. Ed. 2d at 66
(Marshall, J., concurring in judgment) (“It is
precisely because the supervisor is understood
to be clothed with the employer’s authority
that he is able to impose unwelcome sexual
conduct on subordinates”). On the other hand,
there are acts of harassment a supervisor
might commit which might be the same acts a
co-employee would commit, and there may be
some circumstances where the supervisor’s
status makes little difference.
[Ellerth, 524 U.S. at 763, 118 S. Ct. at 2269,
141 L. Ed. 2d at 654.]
In reconciling the test of Restatement § 219(2)(d) with
Meritor’s rejection of strict liability, the Supreme Court
embraced the second alternative: the recognition of an
33
affirmative defense. Id. at 765, 118 S. Ct. at 2270, 141 L. Ed.
2d at 655; Faragher, supra, 524 U.S. at 805-06, 118 S. Ct. at
2290, 141 L. Ed. 2d at 686. In so doing, the Supreme Court
emphasized the legislative goal of deterring sexual harassment
by promoting responsible efforts by employers to detect,
address, and punish it. Ellerth, supra, 524 U.S. at 764, 118 S.
Ct. at 2270, 141 L. Ed. 2d at 654; Faragher, supra, 524 U.S. at
805-06, 118 S. Ct. at 2290, 141 L. Ed. 2d at 686. As this Court
construed the LAD in Lehmann, the Supreme Court held that the
“‘primary objective’” of Title VII was “not to provide redress
but to avoid harm.” Faragher, supra, 524 U.S. at 805-06, 118 S.
Ct. at 2292, 141 L. Ed. 2d at 688 (quoting Albemarle Paper Co.
v. Moody, 422 U.S. 405, 417, 95 S. Ct. 2371, 5 L. Ed. 2d 280,
296 (1975)); see also Lehmann, supra, 132 N.J. at 625-26. The
Court noted in Faragher, supra, the advice of the United States
Equal Employment Opportunity Commission (EEOC) to employers to
“‘take all steps necessary to prevent sexual harassment from
occurring, such as . . . informing employees of their right to
raise and how to raise the issue of harassment.’” 524 U.S. at
806, 118 S. Ct. at 2292, 141 L. Ed. 2d at 688 (quoting 29 C.F.R.
§ 1604.11(f) (1997)); see also Ellerth, 524 U.S. at 764, 118 S.
Ct. at 2270, 141 L. Ed. 2d at 654.
Given the clear objective of Title VII to prevent sexual
harassment in the workplace, the Supreme Court arrived at the
34
conclusion that was reached by this Court in Lehmann, Cavuoti
and Gaines: the imposition of strict liability on an employer
when it has taken no tangible employment action against the
plaintiff employee, without respect to that employer’s efforts
to foster a workplace free from harassment, would contravene the
legislative goal of deterrence. Faragher, supra, 524 U.S. at
806, 118 S. Ct. at 2292, 141 L. Ed. 2d at 688; see Ellerth,
supra, 524 U.S. at 764, 118 S. Ct. at 2270, 141 L. Ed. 2d at
654. The Supreme Court observed:
It would therefore implement clear statutory
policy and complement the Government’s Title
VII enforcement efforts to recognize the
employer’s affirmative obligation to prevent
violations and give credit here to employers
who make reasonable efforts to discharge their
duty. Indeed, a theory of vicarious liability
for misuse of supervisory power would be at
odds with the statutory policy if it failed to
provide employers with some such incentive.
[Faragher, supra, 524 U.S. at 806, 118 S. Ct.
at 2292, 141 L. Ed. 2d at 688; see also
Ellerth, supra, 524 U.S. at 764, 118 S. Ct. at
2270, 141 L. Ed. 2d at 654.]
The Supreme Court identified another factor that was
central to its analysis. Invoking “the general theory of
damages,” the Supreme Court observed that a complainant in a
sexual harassment case “has a duty ‘to use such means as are
reasonable under the circumstances to avoid or minimize the
damages’ that result from violations of [Title VII].” Faragher,
supra, 524 U.S. at 806, 118 S. Ct. at 2292, 141 L. Ed. 2d at 688
35
(quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n.15, 102 S.
Ct. 3057, 3065 n.15, 73 L. Ed. 2d 721, 732 n.15 (1982)). It
held that “[i]f the plaintiff unreasonably failed to avail
herself of the employer’s preventive or remedial apparatus, she
should not recover damages that could have been avoided if she
had done so.” Id. at 806-07, 118 S. Ct. at 2292, 141 L. Ed. 2d
at 688; see also Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at
2270, 141 L. Ed. 2d at 655.
In Ellerth and Faragher, the Supreme Court thus integrated
the agency principles of Restatement § 219(2)(d) with the
legislative objective of deterring sexual harassment by
promoting effective anti-harassment policies. It adopted the
following standard:
An employer is subject to vicarious liability
to a victimized employee for an actionable
hostile environment created by a supervisor
with immediate (or successively higher)
authority over the employee. When no tangible
employment action is taken, a defending
employer may raise an affirmative defense to
liability or damages, subject to proof by a
preponderance of the evidence, see Fed. Rule
Civ. Proc. 8(c). The defense comprises two
necessary elements: (a) that the employer
exercised reasonable care to prevent and
correct promptly any sexually harassing
behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any
preventive or corrective opportunities
provided by the employer or to avoid harm
otherwise.
[Faragher, supra, 524 U.S. at 807, 118 S. Ct.
at 2292-93, 141 L. Ed. 2d at 689; see also
36
Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at
2270, 141 L. Ed. 2d at 655.]
The Supreme Court further commented that
[w]hile proof that an employer had promulgated
an anti-harassment policy with complaint
procedure is not necessary in every instance
as a matter of law, the need for a stated
policy suitable to the employment
circumstances may appropriately be addressed
in any case when litigating the first element
of the defense.
[Faragher, supra, 524 U.S. at 807, 118 S. Ct.
at 2293, 141 L. Ed. 2d at 689; Ellerth, supra,
524 U.S. at 765, 118 S. Ct. at 2270, 141 L.
Ed. 2d at 655.]
We concur with the Supreme Court that the Ellerth/Faragher
analysis provides a fair and practical framework for supervisor
sexual harassment cases.7 Consistent with the focus of
Restatement § 219(2)(d) on the nexus between the employer’s
delegation of authority and the harassment, the Ellerth/Faragher
affirmative defense may not be asserted “when the supervisor’s
harassment culminates in a tangible employment action, such as
7 Relying on a selection of academic commentary disapproving the
Ellerth/Faragher analysis, our dissenting colleagues ignore the
many state appellate courts that have found the affirmative
defense to provide an equitable and workable framework for
supervisor sexual harassment claims based on a hostile work
environment. Post at ___ (slip op. at 13-17), see, e.g., Bank
One v. Murphy, 52 S.W.3d 540 (Ky. 2001); Frieler v. Carlson
Mktg. Grp., 751 N.W.2d 558 (Minn. 2008); Parker v. Warren County
Util. Dist., 2 S.W.3d 170 (Tenn. 1999); Waffle House, Inc. v.
Williams, 313 S.W.3d 796 (Tex. 2010); Brittell v. Dep’t of
Corr., 717 A.2d 1254 (Conn. 1998); Natson v. Eckerd Corp., Inc.,
885 So. 2d 945 (Fla. Dist. Ct. App. 4th Dist. 2004); Sangster v.
Albertson's, Inc., 991 P.2d 674 (Wash. Ct. App. 2000).
37
discharge, demotion or undesirable reassignment.” Faragher,
supra, 524 U.S. at 808, 118 S. Ct. at 2293, 141 L. Ed. 2d at
689; Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L.
Ed. 2d at 655. No affirmative defense is available in such
cases because “[w]hen a supervisor makes a tangible employment
decision, there is assurance the injury could not have been
inflicted absent the agency relation . . . . Tangible
employment actions are the means by which the supervisor brings
the official power of the enterprise to bear on subordinates.”
Ellerth, supra, 524 U.S. at 761-762, 118 S. Ct. at 2269, 141 L.
Ed. 2d at 653-54.
In addition, the defense provides no protection to an
employer whose sexual harassment policy fails to provide
“meaningful and effective policies and procedures for employees
to use in response to harassment.” Gaines, supra, 173 N.J. at
317; see also Lehmann, supra, 132 N.J. at 626 (stating that the
LAD requires an “unequivocal commitment from the top that [the
employer's opposition to sexual harassment] is not just words[,]
but backed up by consistent practice”); accord Faragher, supra,
524 U.S. at 806-07, 118 S. Ct. at 2292, 141 L. Ed. 2d at 688;
Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L. Ed.
2d at 655. In short, the affirmative defense provides no
benefit to employers who empower sexually harassing employees
who take tangible employment actions against their victims,
38
employers who fail to implement effective anti-harassment
policies, and employers whose policies exist in name only.
Conversely, the Ellerth/Faragher framework motivates
employers and employees to accomplish the paramount objective
identified by this Court in Lehmann: the prevention of sexual
harassment. See Lehmann, supra, 132 N.J. at 625-26. The
prospect of an affirmative defense in litigation is a powerful
incentive for an employer to unequivocally warn its workforce
that sexual harassment will not be tolerated, to provide
consistent training, and to strictly enforce its policy. See
ibid.; accord Faragher, supra, 524 U.S. at 806-07, 118 S. Ct. at
2292, 141 L. Ed. 2d at 688; Ellerth, supra, 524 U.S. at 764-65,
118 S. Ct. at 2270, 141 L. Ed. 2d at 655. The Ellerth/Faragher
defense similarly motivates a complainant in a sexual harassment
case to report the offense internally, and thereby enable his or
her employer to take immediate action against a harassing
supervisor or coworker.
In contending that we authorize employers to “hide behind a
paper anti-discrimination policy,” post at ___ (slip op. at 2),
and permit defendants to “seek cover behind an ineffective anti-
discrimination policy,” post at ___ (slip op. at 4), our
dissenting colleagues’ rhetoric fundamentally mischaracterizes
our decision. So that the dissent’s description of our opinion
does not confuse employers, employees, counsel or trial courts
39
with respect to this pivotal issue, we restate: an employer that
implements an ineffective anti-harassment policy, or fails to
enforce its policy, may not assert the affirmative defense. See
Faragher, supra, 524 U.S. at 806-07, 118 S. Ct. at 2292, 141 L.
Ed. 2d at 688; Ellerth, supra, 524 U.S. at 764-65, 118 S. Ct. at
2270, 141 L. Ed. 2d at 655.
Accordingly, we expressly adopt the Ellerth/Faragher
analysis for supervisor sexual harassment cases in which a
hostile work environment is claimed pursuant to the LAD, and no
tangible employment action is taken. See Entrot v. BASF Corp.,
359 N.J. Super. 162, 187 (App. Div. 2003) (anticipating adoption
of Ellerth/Faragher affirmative defense, and holding that “there
is no barrier to the application of a Title VII defense [based
on Ellerth/Faragher] to an LAD action”).8
8 The Appellate Division opinion on which our dissenting
colleagues rely, Schmidt v. Smith, 294 N.J. Super. 569 (App.
Div. 1996), aff’d, 155 N.J. 44 (1998), is not to the contrary.
Post at ___ (slip op. at 5). In its brief review of claims of
direct liability under Restatement § 219(2)(b) and vicarious
liability under Restatement § 219(2)(d), the Appellate Division
simply summarized portions of this Court’s discussion of these
claims in Lehmann. See Schmidt, supra, 294 N.J. Super. at 578-
79. Contrary to the suggestion of the dissent, the Appellate
Division neither stated nor implied that Lehmann precludes the
assertion of an affirmative defense to a claim of vicarious
liability based on Restatement § 219(2)(d). Ibid. Although
the dissent contends that the Appellate Division “pointed out
that unlike supervisory liability,” negligence claims permit an
employer to present evidence of its due care giving rise to a
defense, post at ___ (slip op. at 5), such a distinction is
nowhere to be found in Schmidt. See Schmidt, supra, 294 N.J.
Super. at 578-79.
40
In a hostile work environment sexual harassment case under
the LAD in which the plaintiff alleges employer vicarious
liability under Restatement § 219(2)(d), the plaintiff has the
initial burden of presenting a prima facie hostile work
environment claim. If no tangible employment action has been
taken against the plaintiff, the defendant employer may assert
the two-pronged affirmative defense of Ellerth and Faragher. To
establish that defense, the defendant employer has the burden to
prove, by a preponderance of the evidence, both prongs of the
affirmative defense: first, that the employer 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. See Faragher, supra, 524 U.S. at 807, 118
S. Ct. at 2293, 141 L. Ed. 2d at 689; Ellerth, supra, 524 U.S.
at 746, 118 S. Ct. at 2262, 141 L. Ed. 2d at 644. The employee
may rebut the elements of the affirmative defense.
Thus, in further proceedings in this case, including any
summary judgment proceedings that may follow remand, the State
may avoid vicarious liability under Restatement § 219(2)(d) by
demonstrating by a preponderance of the evidence that the DOC
exercised reasonable care to prevent and correct promptly any
sexually harassing behavior, and that Aguas unreasonably failed
41
to take advantage of any preventive or corrective opportunities
provided by the DOC, or to avoid harm otherwise. See Faragher,
supra, 524 U.S. at 807, 118 S. Ct. at 2292, 141 L. Ed. 2d at
688; Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L.
Ed. 2d at 655.
V.
The second issue raised in this case, the definition of a
supervisor for purposes of claims based on sexual harassment
giving rise to a hostile work environment, is a pivotal factor
in the application of the agency principles set forth in
Restatement § 219(2)(d). Liability under Restatement §
219(2)(d) predicated on a supervisor’s misconduct raises a
critical question of fact -- the parameters of the authority
conferred on the alleged harasser and whether he or she is
properly considered a supervisor. See Restatement § 219(2)(d).
The Court in Lehmann did not expressly define “supervisor”
for purposes of deciding vicarious liability sexual harassment
cases under agency law. It alluded, however, to the “power
delegated to [a supervisor] to control the day-to-day working
environment.” Lehmann, supra, 132 N.J. at 620. Further, in the
context of its discussion of punitive damages, the Court
distinguished between a “supervisor” and the employer’s “upper
management.” Id. at 622-23. The Court thus suggested that its
concept of a supervisor, for purposes of the agency analysis
42
that it proposed, included a broader range of managers than the
senior executives who set policy for an employer. Id. at 623.
Similarly, in Cavuoti, supra, in which the definition of
“upper management” for purposes of a claim for punitive damages
was the primary issue, the Court cited federal authority for the
principle that it is an alleged harasser’s functional authority
in the workplace, not simply his or her power to hire and
terminate a subordinate, that defines his or her status as a
“supervisor.” 161 N.J. at 124-25.
In its role as the agency charged with the enforcement of
Title VII, the EEOC provided guidance to employers regarding the
meaning of the term “supervisor” for purposes of sexual
harassment cases. U.S. Equal Emp’t Opportunity Comm’n, No.
915.002 Enforcement Guidance on Vicarious Liability for Unlawful
Harassment by Supervisors 3-5 (June 18, 1999) [hereinafter “EEOC
Guidance”], available at
http://www.eeoc.gov/policy/docs/harassment.pdf. Applying the
Ellerth/Faragher analysis, the EEOC cautioned that the
determination of whether an alleged harasser is a “supervisor”
turns on job function, not job title, that it “must be based on
the specific facts,” and that a supervisor’s authority “must be
of sufficient magnitude so as to assist the harasser explicitly
or implicitly in carrying out the harassment.” Id. at 4.
43
The first of the two definitions of “supervisor”
promulgated by the EEOC focuses on the supervisor’s capacity to
undertake the adverse employment decisions that, if made, bar an
employer from invoking the Ellerth/Faragher affirmative defense.
Under that definition, “[a]n individual qualifies as an
employee’s ‘supervisor’ if he or she is authorized to undertake
tangible employment decisions affecting the employee.” Ibid.
The EEOC Guidance defines “tangible employment decisions” to
include, but not to be limited to, “hiring and firing, promotion
and failure to promote, demotion, undesirable reassignment, a
decision causing a significant change in benefits, compensation
decisions and work assignment,” and “suspension” or other
“progressive discipline.” Id. at 4, 6-7 n.31. The EEOC
explained:
An individual whose job responsibilities
include the authority to recommend tangible
job decisions affecting an employee qualifies
as his or her supervisor even if the
individual does not have the final say. As
the Supreme Court recognized in Ellerth, a
tangible employment decision “may be subject
to review by higher level supervisors.” As
long as the individual’s recommendation is
given substantial weight by the final decision
maker(s), that individual meets the definition
of supervisor.
[Id. at 4 (footnote omitted).]
The EEOC’s second definition of “supervisor” reflects the
language of the second clause in Restatement § 219(2)(d), which
44
requires that the sexual harasser be “aided in accomplishing the
tort by the existence of the agency relation.” Restatement §
219(2)(d). Citing the lifeguard supervisor setting of Faragher,
the EEOC deems “[a]n individual who is authorized to direct
another employee’s day-to-day work activities” as a supervisor,
“even if that individual does not have the authority to
undertake or recommend tangible job decisions.” EEOC Guidance,
supra, at 4. The EEOC stated:
An individual who is temporarily authorized to
direct another employee’s daily work
activities qualifies as his or her
“supervisor” during that time period.
Accordingly, the employer would be subject to
vicarious liability if that individual commits
unlawful harassment of a subordinate while
serving as his or her supervisor.
On the other hand, someone who merely relays
other officials’ instructions regarding work
assignments and reports back to those
officials does not have true supervisory
authority. Furthermore, someone who directs
only a limited number of tasks or assignments
would not qualify as a “supervisor.” For
example, an individual whose delegated
authority is confined to coordinating a work
project of limited scope is not a supervisor.
[Id. at 5.]
In Vance v. Ball State University, U.S. , , 133 S.
Ct. 2434, 2443, 186 L. Ed. 2d 565 (2013), a closely divided
United States Supreme Court adopted a substantially narrower
definition of “supervisor” than that of the EEOC for purposes of
employer vicarious liability in supervisor sexual harassment
45
cases. There, the majority construed Ellerth and Faragher to
envision not two definitions of the term “supervisor,” but “a
unitary category of supervisors, i.e., those employees with the
authority to make tangible employment decisions.” Ibid. It
held:
[A]n employer may be vicariously liable for an
employee’s unlawful harassment only when the
employer has empowered that employee to take
tangible employment actions against the
victim, i.e., to effect a “significant change
in employment status, such as hiring, firing,
failing to promote, reassignment with
significantly different responsibilities, or
a decision causing a significant change in
benefits.”
[Ibid. (quoting Ellerth, supra, 524 U.S. at
761, 118 S. Ct. at 2257, 141 L. Ed. 2d at
633).]
We decline to adopt the restrictive definition of
“supervisor” prescribed by the Supreme Court majority in Vance.
In light of our fact-specific approach to sexual harassment
cases, we respectfully disagree with the Supreme Court’s
rejection of the EEOC’s definition of supervisor on the grounds
that it relies “on a highly case-specific evaluation of numerous
factors.” Ibid. We agree with the EEOC that the term
“supervisor,” defined more expansively to include not only
employees granted the authority to make tangible employment
decisions, but also those placed in charge of the complainant’s
46
daily work activities, accurately reflects the two different
settings envisioned by Restatement § 219(2)(d).
Moreover, this broader definition comports with this
Court’s holding in Lehmann, in which the Court recognized the
importance, in Restatement § 219(2)(d) sexual harassment cases,
of a supervisor’s authority to control the day-to-day working
environment. Lehmann, supra, 132 N.J. at 132. It is also
consistent with the holding in Cavuoti, in which the Court
rejected the notion that only the power to hire and terminate a
subordinate distinguishes a supervisor from a co-employee.
Cavuoti, supra, 161 N.J. at 124-25. The EEOC definition takes
into account the broad range of employer structures and factual
settings in which sexual harassment occurs.
Most importantly, the more expansive definition of
“supervisor” furthers the paramount goal of the LAD: the
eradication of sexual harassment in the workplace. It prompts
employers to focus attention not only on an elite group of
decision-makers at the pinnacle of the organization, but on all
employees granted the authority to direct the day-to-day
responsibilities of subordinates, and to ensure that those
employees are carefully selected and thoroughly trained.
In any additional proceedings in this case following
remand, the question of whether McClish or Hill served as
Aguas’s “supervisor” should be determined in accordance with the
47
two definitions set forth by the EEOC. Under that standard, the
allegedly harassing employee should be considered a supervisor
for purposes of Aguas’s hostile work environment claim if
either: (1) he was authorized to undertake tangible employment
decisions affecting Aguas; or (2) he was authorized by the DOC
to direct her day-to-day work activities at Edna Mahan.
VI.
Finally, we consider Aguas’s claim for punitive damages.
The trial court premised its dismissal of Aguas’s punitive
damages claim on its determination that the record supported no
claim for compensatory damages in this case and accordingly did
not undertake a detailed analysis of the punitive damages claim.
We briefly review the standard that governs such a claim.
A plaintiff asserting a punitive damages claim in a LAD
case against a public entity such as the DOC must meet a high
standard. A public sector employer “whose egregious conduct
violates the LAD may be held ‘liable for punitive damages . . .
only in the event of actual participation by upper management or
willful indifference.’” Lockley v. Dep’t of Corr., 177 N.J.
413, 424 (2003) (quoting Cavuoti, supra, 161 N.J. at 117). The
plaintiff must prove egregious conduct on the part of the
defendant by clear and convincing evidence. Id. at 432 (citing
L. 1995, c. 142, § 11); see also Lehmann, supra, 132 N.J. at
624-25 (quoting Leimgruber v. Claridge Assocs., 73 N.J. 450, 454
48
(1977)). For such damages, “a higher level of culpability than
mere negligence” is required. Lehmann, supra, 132 N.J. at 626.
For purposes of this analysis, defining the employer’s
“upper management” is a fact-sensitive inquiry that does not
“depend[] on labels or titles but on whether an employee
possesses ‘significant power, discretion and influence.’”
Lockley, supra, 177 N.J. at 424 (quoting Cavuoti, supra, 161
N.J. at 123). This Court has explained that
upper management would consist of those
responsible to formulate the organization’s
anti-discrimination policies, provide
compliance programs and insist on performance
(its governing body, its executive officers),
and those to whom the organization has
delegated the responsibility to execute its
policies in the workplace, who set the
atmosphere or control the day-to-day
operations of the unit (such as heads of
departments, regional managers, or compliance
officers). For an employee on the second tier
of management to be considered a member of
“upper management,” the employee should have
either (1) broad supervisory powers over the
involved employees, including the power to
hire, fire, promote, and discipline, or (2)
the delegated responsibility to execute the
employer’s policies to ensure a safe,
productive and discrimination-free workplace.
Obviously such instructions should be tailored
to the facts of the case and might be
accompanied by special interrogatories when
several officers are presented as members of
“upper management.”
[Cavuoti, supra, 161 N.J. at 128-29.]
Thus, this fact-sensitive inquiry requires consideration of the
following: (1) the employee’s position in the employer’s
49
hierarchy; (2) the employee’s function and responsibilities; and
(3) the amount of discretion the employee exercises. Lockley,
supra, 177 N.J. at 424.
Although claims brought pursuant to the LAD are excluded
from the statutory cap set by the Punitive Damages Act, N.J.S.A.
2A:15-5.9 to -5.17 (PDA), in N.J.S.A. 2A:15-5.14, the PDA’s
“general requirements for procedural and substantive fairness
are mandated.” Baker v. Nat’l State Bank, 161 N.J. 220, 229
(1999). Pursuant to N.J.S.A. 2A:15-5.12(c), if the trier of
fact determines that an award is appropriate in an LAD case
against a public sector employer, it sets the amount of that
award by considering all relevant evidence relating to the
factors set forth in N.J.S.A. 2A:15-5.12(b), “the profitability
of the misconduct to the defendant” and when the misconduct was
terminated.9
Consequently, if the trial court is called upon to
determine Aguas’s punitive damages claim on remand, it should
assess whether Aguas has shown by clear and convincing evidence
that the DOC committed “egregious conduct,” and if so, whether
she has presented clear and convincing evidence that “upper
9 A fourth factor identified in N.J.S.A. 2A:15-5.12(c), the
defendant’s financial condition, is generally not considered
when the defendant is a public entity because it “does not
further the goal of deterrence as it does in the private
sector.” Lockley, supra, 177 N.J. at 430-31.
50
management” either participated directly in sexual harassment,
or showed “willful indifference.” The court should also assess
Aguas’s claims in accordance with the PDA and this Court’s
holdings in Cavuoti and Lockley.
VII.
The judgment of the Appellate Division is reversed, and the
matter is remanded for further proceedings in accordance with
this opinion.
JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion.
JUSTICE ALBIN filed a separate, dissenting opinion in which
CHIEF JUSTICE RABNER joins.
51
SUPREME COURT OF NEW JERSEY
A-35 September Term 2013
072467
ILDA AGUAS,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
Defendant-Respondent.
JUSTICE ALBIN, dissenting.
The majority opinion turns back the clock for employees
victimized by sexual harassment in the workplace and gives
greater protection to supervisors who abuse their authority to
create a hostile work environment. Today’s decision tears down
the central pillar of our landmark decision in Lehmann v. Toys
‘R’ Us, 132 N.J. 587 (1993), which announced that an employer
would be vicariously liable for sexual harassment committed by
one of its supervisors. Lehmann allowed no quarter for
supervisory sexual harassment and provided for no affirmative
defense for the employer. We said so in clear, unmistakable
terms, leaving no doubt that under New Jersey’s Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49, this State’s
workers had safeguards not present under federal law.
1
The Appellate Division, the United States District Court of
New Jersey, and the New Jersey Supreme Court Committee on Civil
Jury Charges all recognized that under Lehmann, when the
supervisor is the sexual harasser, the employer has no
affirmative defense and cannot hide behind a paper anti-
discrimination policy. Civil Jury Charge 2.25 reaffirmed in
2013 what we said twenty years earlier in Lehmann -- that an
employer is vicariously liable if a supervisor creates a hostile
work environment through sexual harassment. Model Jury Charge
(Civil) 2.25 “Hostile Work Environment Claims Under the New
Jersey Law Against Discrimination (Sexual and Other Harassment)”
(February 2013). Trial courts have been guided by that charge
for eighteen years. The majority now says it was all a mistake.
I cannot pretend that the majority’s retreat from Lehmann
will not have real-life negative consequences for the targets of
workplace discrimination. Going forward, sexually harassed
employees -- mostly women -- will be less likely to find relief
in our courts, and therefore will be less likely to take their
grievances there.1 And employers will have less incentive to use
greater care in selecting supervisors who will enforce rather
than violate anti-discrimination policies. This is not a sky-
1 Lehmann’s basic assumption is that women are the most frequent
victims of sexual harassment in the workplace. See Lehmann,
supra, 132 N.J. at 615.
2
is-falling prediction but a stark reality for anyone who
understands what our jurisprudence was and what it has now
become.
The Law Against Discrimination is one of New Jersey’s most
progressive legislative schemes. Under the LAD, vicarious
supervisory liability was a critical remedy both in making
discriminated employees whole and in deterring workplace
harassment. Because the majority has abandoned that remedy
without any compensating benefit, I respectfully dissent.
I.
In our landmark decision in Lehmann, supra, 132 N.J. at
615-25, we set forth the different pathways for employer
liability under our LAD when an employee is subjected to a
hostile work environment through sexual harassment. In cases
involving a hostile work environment persisting through an
employer’s alleged negligence, we allowed for an employer to
show that it exercised due care by effectuating an anti-
discrimination policy accessible to employees. Id. at 621-22
(relying on Restatement (Second) of Agency § 219(2)(b) (1958)).
However, we took a different approach when the supervisor was
the perpetrator of sexual harassment. In that circumstance, we
clearly stated that an employer would be vicariously liable for
the supervisor’s sexual harassment of a subordinate because the
employer delegated to the supervisor the authority to control
3
the workplace. Id. at 620 (relying on Restatement (Second) of
Agency, supra, § 219(2)(d)). The employer could not seek cover
behind an ineffective anti-discrimination policy that did not
deter a supervisor from misusing the power delegated to him.
In Lehmann, we stated that whether an employer is liable
for the hostile work environment created by a supervisor
controlling the day-to-day activities of an employee depends on
how a factfinder decides four questions:
1. Did the employer delegate the authority to
the supervisor to control the situation of
which the plaintiff complains?
2. Did the supervisor exercise that authority?
3. Did the exercise of authority result in a
violation of the LAD?
4. Did the authority delegated by the employer
to the supervisor aid the supervisor in
injuring the plaintiff?
[Ibid.]
We further stated that “[w]hen the answer to each of those
questions is yes, then the employer is vicariously liable for
the supervisor’s harassment under § 219(2)(d).” Ibid. In
supervisory liability cases, Lehmann posed no fifth question
asking whether an employer should be excused because of a
purportedly effective anti-discrimination policy available to
its harassed employees.
4
Lehmann’s simple formulation of employer supervisory
liability was understood by our courts and by various Supreme
Court Committees given the task of preparing a jury charge
consistent with our holding in Lehmann.
Writing for the Appellate Division in Schmidt v. Smith, 294
N.J. Super. 569, 578 (App. Div. 1996), aff’d, 155 N.J. 44
(1998), Judge Keefe noted that the “Lehmann Court provided a
check list for the determination of whether a supervisor who
creates a hostile work environment was aided in accomplishing
that tort by the power delegated to him or her to control the
day-to-day working environment.” Judge Keefe quoted the above
four-question test in Lehmann and stated: “When the answer to
each of these questions is yes, then the employer is vicariously
liable for the supervisor’s harassment under § 219(2)(d).”
Ibid. (citing Lehmann, supra, 132 N.J. at 619). Judge Keefe
pointed out that unlike supervisory liability, the standard
governing sexual harassment negligence claims allows an employer
to present evidence of due care, such as “some effective
preventative mechanisms such as anti-harassment policies, formal
and informal complaint structures and monitoring mechanisms.”
Id. at 579 (citing Lehmann, supra, 132 N.J. at 621).
The Supreme Court Model Civil Jury Charge Committee,
comprised of preeminent judges and lawyers, has formulated and
revised a supervisory-liability charge four times since 1997,
5
each time asserting that an employer has no defense to a
supervisor’s sexual harassment if the factfinder answers the
four Lehmann questions in the affirmative. As recently as
February 2013, the Model Civil Jury Charge Committee issued
instructions on employer liability when a supervisor or non-
supervisor creates the hostile work environment.2 Civil Jury
Charge 2.25 provides that an employer is liable “if it delegated
to [the harassing supervisor] the authority to control the
working environment and [the harassing supervisor] abused that
authority to create a hostile work environment.” Model Jury
Charge (Civil) 2.25(4)(b). The jury is (and has been) provided
with the following instructions:
To prove that defendant [employer’s name]
is liable to plaintiff based on its delegation
of authority to [name(s) of alleged harassing
supervisor(s)], plaintiff must prove each of
the following elements by a preponderance of
the evidence:
2 Model Jury Charge (Civil) 8.49, which instructs the jury on
supervisory sexual harassment, was approved by the Supreme Court
Model Civil Jury Charge Committee in October 1997. Model Jury
Charge (Civil) 8.49 “Supervisory Sexual Harassment” (October
1997). Model Jury Charge (Civil) 2.25, which instructs the jury
on hostile work environment claims under the LAD, was approved
by the Supreme Court Model Civil Jury Charge Committee in
November 1999. Model Jury Charge (Civil) 2.25. Then, in 2000,
the Committee revised the charge, based on Lehmann. Notices to
the Bar, Updates to Model Civil Jury Charges, 159 N.J.L.J. 258,
258 (Jan. 17, 2000). The charge was revised again, in February
2013, to “address an employer’s liability under the LAD for
supervisory acts of sexual harassment.” Notices to the Bar,
Model Civil Jury Charges Updates, 213 N.J.L.J. 554, 554 (Aug.
12, 2013).
6
(1) That defendant [employer’s name]
delegated authority to [name(s) of
alleged harassing supervisor(s)] to
control the situation of which plaintiff
complains; and
(2) [name(s) of alleged harassing
supervisor(s)] exercised that authority;
and
(3) [name(s) of alleged harassing
supervisor(s)] exercise of authority
resulted in unlawful harassment; and
(4) the authority delegated by
defendant [employer name] to [name(s) of
alleged harassing supervisor(s)] aided
[name(s) of alleged harassing
supervisor(s)] in harassing plaintiff.
If you find that the plaintiff has proved
each of these elements, then defendant
[employer’s name] is liable for the alleged
unlawful harassment. If any one of these
elements is not proved, then defendant
[employer’s name] cannot be held liable based
on its delegation of authority.
[Ibid.]
That charge has been given to juries for eighteen years.
In Gaines v. Bellino, 173 N.J. 301, 313 (2002), we reaffirmed
the basic formula found in this jury charge derived from
Lehmann, never hinting that an affirmative defense applied to
supervisory liability under the Restatement § 219(2)(d)
approach. We did so even though Faragher v. City of Boca Raton,
524 U.S. 775, 807, 118 S. Ct. 2275, 2293, 141 L. Ed. 2d 662, 689
(1998) and Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65,
118 S. Ct. 2257, 2270, 141 L. Ed. 2d 633, 655 (1998), which
7
provide an affirmative defense to supervisory liability, were
both on the books. In Gaines, supra, we only stated that when
an employee alleges employer negligence in causing a hostile
work environment, under Restatement § 219(2)(b), the employer
can assert the affirmative defense that it had an anti-
discrimination policy in place. 173 N.J. at 313-14.
Moreover, that Cavuoti v. New Jersey Transit Corp., 161
N.J. 107, 120-21 (1999), permits an affirmative defense to a
punitive-damage claim against a company in a LAD case, in no way
contradicts Lehmann’s no-affirmative defense to a compensatory-
damage claim involving supervisory liability, as the majority
suggests. Nowhere in Cavuoti does the Court contravene the
supervisory-liability test for compensatory damages crafted in
Lehmann.
Last, if Cavuoti and Gaines stood for the proposition that
an affirmative defense applies to vicarious supervisory
liability -- as the majority asserts -- then it stands to reason
that this Court in 1999 and 2002 would have directed the Model
Civil Jury Charge Committee to amend the Model Charge to conform
to that view. But that never happened. Only now does the
majority give the directive to the Committee to amend the Charge
to include an affirmative defense.
II.
8
In Lehmann, supra, we understood that we were pursuing our
own path, a different path in construing the LAD as providing
greater protection against workplace discrimination than that
afforded by federal courts construing Title VII. 132 N.J. at
600-01, 603, 618-20. Indeed, we eschewed the standard set forth
by the United States Court of Appeals for the Third Circuit for
hostile work environment sexual harassment. Id. at 603. We
stated:
[W]e announce a new test in the hope of
creating a standard that both employees and
employers will be able to understand and one
that employers can realistically enforce. We
cannot overstate the importance we place on a
test that allows employees to know their
rights in a given set of circumstances and
that allows employers to set policies and
procedures that comply with that test.
[Ibid.]
Importantly, in Lehmann, supra, we declined to follow the
United States Supreme Court majority’s decision in Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L.
Ed. 2d 49 (1986). 132 N.J. at 618-21. Meritor, supra, refused
to accept the notion that “an employer is strictly liable for a
hostile environment created by a supervisor’s sexual advances,
even though the employer neither knew nor reasonably could have
known of the alleged misconduct.” 477 U.S. at 69-70, 106 S. Ct.
at 2407, 91 L. Ed. 2d at 61. Rather than follow Meritor, in
Lehmann, supra, we cited approvingly Justice Marshall’s
9
concurrence (joined by Justices Brennan, Blackmun, and Stevens)
on supervisory liability:
[A] supervisor’s responsibilities do not begin
and end with the power to hire, fire, and
discipline employees, or with the power to
recommend such actions. Rather, a supervisor
is charged with the day-to-day supervision of
the work environment and with ensuring a safe,
productive workplace. There is no reason why
abuse of the latter authority should have
different consequences than abuse of the
former. In both cases it is the authority
vested in the supervisor by the employer that
enables him to commit the wrong: it is
precisely because the supervisor is understood
to be clothed with the employer’s authority
that he is able to impose unwelcome sexual
conduct on subordinates.
[132 N.J. at 618-19 (quoting Meritor, supra,
477 U.S. at 76-77, 106 S. Ct. at 2410, 91 L.
Ed. 2d at 65-66 (Marshall, J., concurring)).]
The United States Supreme Court in Faragher, supra,
declared that it was bound to follow the majority decision in
Meritor. 524 U.S. at 792, 118 S. Ct. at 2286, 141 L. Ed. 2d at
679. However, as pointed out, in Lehmann, supra, we did not
adopt the reasoning in Meritor. 132 N.J. at 618-21. Therefore,
we are not bound to follow Faragher in lock-step.
Faragher, supra, held that an employer is subject to strict
“vicarious liability to a victimized employee for an actionable
hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee” when a
tangible employment action is taken, “such as discharge,
10
demotion, or undesirable reassignment.” 524 U.S. at 807-08, 118
S. Ct. at 2293, 141 L. Ed. 2d at 689. On the other hand,
“[w]hen no tangible employment action is taken” -- for example,
when the harassing conduct causes an employee to suffer a
nervous breakdown or a severe psychiatric disorder -- Faragher
allows an affirmative defense. See id. at 807, 118 S. Ct. at
2293, 141 L. Ed. 2d at 689. The affirmative defense comes into
play if the employer can show “(a) that the employer exercised
reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid
harm otherwise.” Ibid. The Court came to the same holding in
Ellerth, supra, 524 U.S. at 764-65, 118 S. Ct. at 2270, 141 L.
Ed. 2d at 655, which was decided on the same day as Faragher.
Until today, the Ellerth/Faragher affirmative defense standard
was foreign to our LAD jurisprudence.
Lehmann makes no such distinction between tangible
employment actions and sexual harassment that may cause physical
or psychological harm to the employee. Under Lehmann, supra, so
long as the “employer grants the supervisor the authority to
control the working environment and the supervisor abuses that
authority to create a hostile work environment,” the employer is
liable for compensatory damages, whatever they may be. 132 N.J.
11
at 624. Thus, a supervisor who sexually harasses and
psychologically breaks an employee will be liable for
compensatory damages. Ellerth/Faragher cannot be squared with
Lehmann.
The United States District Court of New Jersey knew that
our approach in Lehmann was incompatible with Ellerth/Faragher.
In Newsome v. Administrative Office of the Courts, 103 F. Supp.
2d 807 (D.N.J. 2000), the plaintiff asserted violations of Title
VII and the LAD, alleging that she was sexually harassed by her
supervisor at the Administrative Office of the Courts (AOC).
Even in the wake of Ellerth/Faragher, Judge Greenaway stated
that “[a]lthough the New Jersey Supreme Court frequently looks
to Title VII jurisprudence in interpreting the LAD, it has
adopted a slightly broader test than that of the Third Circuit
for hostile environment harassment.” Id. at 817 (citation
omitted). Like Judge Keefe and the Supreme Court Model Civil
Jury Charge Committee, Judge Greenaway read Lehmann as not
providing an affirmative defense to supervisory liability for
sexual harassment. Id. at 822. In a case in which an employer
delegates to a supervisor the power to control the work
environment, thus facilitating the harassing conduct, Judge
Greenaway held that, under the LAD, “[t]he reasonableness of the
AOC’s actions in implementing anti-harassment policies is no
defense to harassment committed because of the agency
12
relationship.” Ibid. Judge Greenaway stated that if a jury
answered affirmatively that the supervisor’s actions “were
sufficiently severe or pervasive to create a hostile work
environment” and that the supervisor “was able to commit those
acts because of the authority delegated him by the AOC,” then
“the AOC will be vicariously liable, irrespective of its anti-
harassment policies.” Ibid.
Judge Greenaway understood Lehmann’s distinction between
the LAD and Title VII’s approach to supervisory liability. It
is that important distinction that the majority paves over
today.
III.
Today’s decision is at complete odds with the widely held
view that the LAD, under Lehmann, provided greater protection
than federal law in hostile work environment cases.3 “The LAD is
3 See Elliot M. Baumgart & David H. Ben-Asher, If You Don’t Have
a Grievance Procedure, Get One; U.S. Supreme Court Lays Down the
Rules for Avoiding Employer Liability for Sexual Harassment by
Supervisors, 153 N.J.L.J. 492, 496 (Aug. 3, 1998) (“The
discussion in Lehmann of an employer’s effective complaint
mechanisms took place only in the context of the negligence
ground for vicarious liability, in contrast to Faragher and
[Ellerth] -- in which the existence of a complaint mechanism is
clearly available as a defense to all the grounds for vicarious
liability.”); Lisa Manshel, Employer Liability for Supervisors’
Sexual Harassment; Why Faragher and Ellerth Affirmative Defenses
Shouldn’t Apply Under the LAD, 160 N.J.L.J. 609, 609 (May 15,
2000) (“The proponents of [Ellerth/Faragher] seek to use this
affirmative defense to escape liability under the less forgiving
test set forth in Lehmann.”); id. at 615 (“In actuality, the new
affirmative defense is nothing more than a policy decision to
13
remedial social legislation whose overarching goal is to
eradicate the ‘cancer of discrimination.’” Nini v. Mercer Cnty.
Cmty. Coll., 202 N.J. 98, 108-09 (2010). Before today, we
heralded this state’s progressive anti-discrimination laws and
jurisprudence. For example, in Alexander v. Seton Hall
University, 204 N.J. 219, 222, 234-35 (2010), we refused to
follow the United States Supreme Court’s crabbed “framework for
analyzing accrual and timeliness in Title VII wage
discrimination claims” in Ledbetter v. Goodyear Tire & Rubber
Co., 550 U.S. 618, 127 S. Ct. 2162, 167 L. Ed. 2d 982 (2007),
because that framework disadvantaged employees who suffered
discrimination. We rejected “the sea change that would be
effected were we to adopt the Ledbetter majority approach to
wage discrimination claims under our LAD” in light of our
settled case law. Alexander, supra, 204 N.J. at 234. We
therefore allowed for a more expansive statute of limitations
under the LAD for the filing of wage discrimination claims.
Ibid. Yet, the majority in this case invites a “sea change”
that will disadvantage sexually harassed employees in the
workplace.
shield employers from liability despite the fact that their
policies are not effective. This federal policy contradicts the
intent of the New Jersey Legislature as understood in
Lehmann.”).
14
If the United States Supreme Court’s interpretation of
Title VII was not the gold standard in Alexander, then why here?
First, the Ellerth/Faragher standard is not in keeping with our
liberal construction of our LAD. See Nini, supra, 202 N.J. at
108-09 (noting that LAD “should be liberally construed” because
it “is remedial social legislation”). Second, the
Ellerth/Faragher standard has received substantial criticism.
One commentator has stated the Ellerth/Faragher standard creates
a “risk that internal programs will be merely ‘symbolic
responses -- responses designed to create a visible commitment
to law, which may, but do not necessarily, reduce employment
discrimination.’” Melissa Hart, The Possibility of Avoiding
Discrimination: Considering Compliance and Liability, 39 Conn.
L. Rev. 1623, 1646 (2007) (quoting Lauren B. Edelman, Legal
Ambiguity and Symbolic Structures: Organizational Mediation of
Civil Rights Law, 97 Am. J. Soc. 1531, 1542 (1992)). Another
commentator has expressed concern that “firms may utilize
compliance systems simply as window-dressing to reduce the
probability of legal liability without addressing the underlying
behavior.” Timothy P. Glynn, Taking Self-Regulation Seriously:
High-Ranking Officer Sanctions for Work-Law Violations, 32
Berkeley J. Emp. & Lab. L. 279, 312 (2011); see also Anne
Lawton, Operating in an Empirical Vacuum: The Ellerth and
Faragher Affirmative Defense, 13 Colum. J. Gender & L. 197, 199
15
(2004) (noting that United States Supreme Court’s approach
“paved the way for the lower federal courts to interpret the
affirmative defense in ways that further undermine, rather than
facilitate, the goal of deterring sexual harassment in the
workplace”); John H. Marks, Smoke, Mirrors, and the
Disappearance of “Vicarious” Liability: The Emergence of a
Dubious Summary-Judgment Safe Harbor for Employers Whose
Supervisory Personnel Commit Hostile Environment Workplace
Harassment, 38 Hous. L. Rev. 1401, 1405 (2002) (stating that
post-Ellerth courts are “manufacturing a dubious summary
judgment safe harbor for employers”).
The Ellerth/Faragher standard, moreover, is not the optimal
method for discouraging sexual harassment in the workplace.
See, e.g., Susan Bisom-Rapp, Bulletproofing the Workplace:
Symbol and Substance in Employment Discrimination Law Practice,
26 Fla. St. U. L. Rev. 959, 972 (1999) (“[T]he implementation of
symbolic policies and procedures in no way guarantees
substantive change for members of the groups that EEO law is
designed to protect. In fact, symbolic policies and procedures
may provide unjustified optimism that an organization is
governed fairly.”); Joanna L. Grossman, The Culture of
Compliance: The Final Triumph of Form over Substance in Sexual
Harassment Law, 26 Harv. Women’s L.J. 3, 71 (2003) (“Research
suggests that the affirmative defense rewards compliance without
16
ensuring success.”); Kimberly D. Krawiec, Organizational
Misconduct: Beyond the Principal-Agent Model, 32 Fla. St. U. L.
Rev. 571, 574 (2005) (“[S]ome organizations may employ internal
compliance structures primarily as a window-dressing mechanism
that provides both market legitimacy and reduced organizational
liability for agent misconduct.”); Lawton, supra, 13 Colum. J.
Gender & L. at 198 (expressing concern that courts should not
“reward employers for ‘file cabinet compliance.’”).
Clearly, Ellerth/Faragher is not offering a better way than
Lehmann for the victims of hostile work harassment, whether
those victims are targeted because of their gender, sexual
orientation, race, religion, or nationality. If our civil jury
charge on supervisory liability was so wrong because it gave
victims of discrimination an unfair litigation advantage, one
must wonder why it took our Court eighteen years to say so.
Moreover, had the Legislature wanted to include an affirmative
defense to supervisory liability in the wake of
Ellerth/Faragher, it could have amended the LAD. But it did
not.
In short, neither precedent, nor experience, nor logic
requires us to adopt a standard that is inferior to our own
standard in Lehmann for supervisory liability in LAD hostile
work environment cases.
IV.
17
Here are Aguas’s assertions, which we must accept as true
for summary-judgment purposes. The highest-ranking officer on
the third shift at the Edna Mahan Correctional Facility
repeatedly sexually harassed Corrections Officer Ilda Aguas. On
one occasion, the shift commander solicited Aguas to go with him
to a motel; on another, he sat on her lap and blew his whistle
while grinding his pelvis into her in the presence of two of
Aguas’s supervisors.
In another incident, the shift commander pulled Aguas’s
hands behind her back up to her shoulder blades, bent her over a
table with his genital area touching her buttocks, stating “What
are you going to do?” In yet another incident, the shift
commander danced around Aguas and blew his whistle as though she
were a stripper. Two superior officers were present but did not
intercede. Other unwanted encounters included the shift
commander massaging Aguas’s shoulders.
Aguas reported those egregious episodes of sexual
harassment to a supervising lieutenant numerous times, and his
response was that she should handle the matter herself. The
supervising lieutenant took the position that he was “not going
to lose [his] job by getting involved in this.” If Aguas’s
account is true, the State is liable under Lehmann’s
supervisory-liability standard, regardless of whether Aguas made
18
a formal complaint pursuant to the Department of Correction’s
anti-discrimination policy.
Based on Aguas’s account, one fair inference is that a
climate of fear discouraged the reporting of sexual harassment
against a high-ranking officer. Common sense tells us that when
the supervisor is the sexual harasser and other superior
officers look the other way, as alleged here, the anti-
discrimination policy touted by the employer has failed. The
additional hoops that the majority requires Aguas to jump
through under the Ellerth/Faragher standard do not advance the
goals of the LAD, which is to rid the workplace of
discriminatory harassment. This case exemplifies, if the
allegations are true, how supervisory harassment can beat down
and belittle an employee, who may understandably believe that
she has nowhere to turn but to the courts.
V.
In the end, this is a case about statutory interpretation,
and our mission is to construe the LAD consistent with the
Legislature’s salutary goal of eradicating sexual harassment in
the workplace. By imposing vicarious liability on the employer
for a supervisor’s sexual harassment, the Lehmann Court gave
effect to its understanding of the Legislature’s intent in
passing the LAD. If the majority’s interpretation of the LAD is
19
wrong, as I believe it is, the Legislature can still speak to
the issue.
CHIEF JUSTICE RABNER joins in this opinion.
20
SUPREME COURT OF NEW JERSEY
NO. A-35 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
ILDA AGUAS,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
Defendant-Respondent.
DECIDED February 11, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Albin
REVERSE/
CHECKLIST AFFIRM
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 5 2