In New Jersey, sexual harassment in the workplace is considered a form of unlawful sex discrimination. The elements that a plaintiff must prove can vary depending on the circumstances of the case, and several defenses are available to defendants. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled on a defendant’s use of the Faragher-Ellerth affirmative defense. A defendant can overcome liability under federal law if they can prove, in part, that a plaintiff unreasonably failed to report alleged sexual harassment. The plaintiff did not report alleged sexual harassment by her supervisor for four years. The court rejected the defendant’s claim that this was per se unreasonable under Faragher-Ellerth, citing the recent revelations of the #MeToo movement. Minarsky v. Susquehanna Cty., No. 17-2646, slip op. (3d Cir., Jul. 3, 2018).
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. Numerous court decisions have applied this to sexual harassment. When an alleged harasser is a coworker of the complainant, or is otherwise not part of the company’s management, the employer is only liable if it was aware of the alleged harassment and failed to make reasonable efforts to remedy the situation.
The Faragher-Ellerth affirmative defense is partially based on this obligation to notify the employer and seek internal remedies. Since it is an affirmative defense, the burden of proof shifts to the defendant to prove two elements:
1. “[T]he employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); and
2. The complainant “failed to [use] reasonable care to take advantage of the employer’s safeguards and…to prevent harm that could have been avoided.” Faragher v. Boca Raton, 524 U.S. 775, 805 (1998).