On January 28, 2016, notwithstanding its denial of Petition for Certification in Dunkley v. S. Coraluzzo Petroleum Transporters, C-437 Sept. Term 2015, the New Jersey Supreme Court clarified an employer’s obligation with respect to harassment awareness training. The Supreme Court stated that only an employer who institutes meaningful and effective anti-harassment polices and procedures intended to prevent discrimination before the alleged discriminatory conduct may assert an affirmative defense. Employers who only institute remedial measures after the alleged discriminatory conduct are not entitled to the affirmative defense.

By way of background, an employer has an affirmative defense in a harassment lawsuit where the:

  1. Employer exercised reasonable care to prevent and to correct promptly sexually harassing behavior; and
  2. Plaintiff employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer or to otherwise avoid harm.

Aguas v. State, 220 N.J. 494, 522-24 (2014)(adopting the affirmative defense established by the U.S. Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998), the “Ellerth/Faragher Test”). In order for the employer to take advantage of this affirmative defense, however, it must provide “meaningful and effective harassment policies and procedures for the employee to use in response to harassment.” Aguas, 220 N.J. at 522-23.

Plaintiff Brian Dunkley, who is African American, alleged that he was forced to resign from Defendant S. Coraluzzo Petroleum Transporters because of a hostile work environment. The Appellate Division, in a published opinion, affirmed the trial court’s entry of summary judgment in favor of the defendant employer.

The Appellate Division found that the defendant employer had met the standards found in Aguas simply because it “exercised reasonable care to prevent and correct harassing conduct by the prompt enforcement of its anti-discrimination policy,” after determining the reasons why plaintiff did not return to work. Id. at 339.

The New Jersey Supreme Court wrote to clarify that this reasoning is inconsistent with the Aguas and the Ellerth/Faragher standard. Instead, under that standard, only an employer who institutes meaningful and effective anti-harassment polices and procedures intended to prevent discrimination before the alleged discriminatory conduct may assert the affirmative defense. In other words, according to the Supreme Court, employers who only institute remedial measures after the alleged discriminatory conduct are not entitled to the Aguas affirmative defense.

The Bottom Line. This Order is extremely important for employers and demonstrates how important it is to implement a good anti-discrimination policy and conduct harassment awareness training before a complaint of harassment occurs. All employers should consult with legal counsel to ensure effective measures are in place to preserve all potential defenses to employment discrimination claims.