On February 11, 2015, in Aguas v. State of New Jersey, the New Jersey Supreme Court issued two rulings that will have a significant impact on hostile work environment harassment cases. First, with regard to claims alleging vicarious liability for supervisory harassment under the LAD, the Court adopted the governing  test set forth by the United States Supreme Court in Burlington v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Specifically, the Court held that 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.

Second, the Court clarified the definition of “supervisor” for purposes of hostile work environment claims since there was tension between the expansive definition of supervisor promulgated by the Equal Employment Opportunity Commission and the more restrictive definition set forth in Vance v. Ball State University, 133 S. Ct. 2434 (2013).

Specifically, the Court adopted the more expansive definition utilized by the EEOC, finding that an alleged 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.”

While these are significant rulings, note that an employer may only utilize the vicarious liability affirmative defense when no adverse employment action is taken against the employee (i.e., there is no employment termination, demotion, etc.) Therefore, the holding applies to limited factual circumstances.  Nonetheless, as an employee, it is important that you utilize any complaint mechanisms established by your employer if you believe you are subject to hostile work environment harassment. Failure to do so may jeopardize the merits of your case depending on the facts.