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Model Civil Jury Charge Update in Hostile Work Environment Claims

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The New Jersey Supreme Court Committee on Model Civil Jury Charges has approved as of June 1, 2015 that the Model Civil Jury Charge, for use by the Bar and Trial Courts ,be updated specifically as to Charge 2.25, Hostile Work Environment Claims under the New Jersey Law Against Discrimination (sexual and other harassment).

The amendment to the Model Civil Charge was made in light of the New Jersey Supreme Court’s decision in the case of Aguas v. State, 220 N.J. 494 (2015). In Aguas, the Court held that an employer in a hostile work environment, sexual harassment case, may assert as an affirmative defense that it exercised reasonable care to prevent and promptly correct the improper behavior. Moreover, in order to assert the defense, it must be shown that the plaintiff employee, unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm. Finally, the Court held that it must also be shown that the employer had not taken “an adverse employment action” against the plaintiff employee. The matter was remanded for findings consistent with the Court’s opinion.

Factually, in Aguas, the plaintiff, Hilda Aguas, had worked for the State of New Jersey as a corrections officer. She had claimed her supervisor and other officers subjected her to a hostile work environment of sexual harassment in violation of the law against discrimination. However, although the plaintiff had alleged she had reported the harassment orally prior to filing a lawsuit against the state, she violated her employer’s written anti-harassment policy because she did not file a written complaint. Rather, she filed a lawsuit against the State two days after her employer initiated a formal investigation as to the oral report of harassment and without waiting for the outcome of the investigation.

The Court in Aguas emphasized that an employer, in order to assert the affirmative defense, must demonstrate the existence of an effective anti-harassment policy and that the employee failed to utilize the policy to report and remediate the harassment. ( In Aguas, the New Jersey Supreme Court, for the first time, expressly adopted the U.S. Supreme Court’s “Ellerth/Faragher” analysis regarding vicarious liability under LAD claims.)

The New Jersey Supreme Court Committee on Model Civil Jury Charges considered the impact of the Aguas decision and revised the Model Civil Jury Charge to reflect the affirmative defense available to an employer that had exercised reasonable care to prevent improper behavior.

In light of the Aguas decision as well as the amendment to the Model Civil Jury Charges, it is recommended that employers routinely review their individual employment practices. It is imperative that employers consider an effective anti-harassment policy and address the needs of their employees in accordance with current law.

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