Employer Not Entitled to Jury Charge on Ellerth-Faragher Affirmative Defense Where Evidence Was Insufficient to Establish That Policy Existed and Plaintiffs Knew About It

Perez v. A-1 Property Management, L.L.C., 2009 WL 1811443 (App. Div., June 26, 2009) – The plaintiffs filed suit alleging hostile work environment sexual harassment. They claimed they had not filed an internal complaint with the employer because they had not been advised of any sexual harassment policy, nor were there any written materials either provided or posted to inform them of their rights. The employer disputed these facts, but the supervisor-harasser himself had no knowledge of a policy. The Appellate Division found the employer was not entitled to a charge on the affirmative defense provided under Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), because there was insufficient evidence as a matter of law to conclude it met the Ellerth-Faragher test that 1) it had exercised reasonable care to prevent and promptly correct harassment, and 2) the plaintiff had unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

This decision is important to remind employers that simply enacting a policy is not enough. The policy must be made known to the employees, prominently displayed, and be accompanied by appropriate complaint structures, monitoring mechanisms and training.

Note: This article was published in the July 2009 issue of the New Jersey eAuthority.