In Smith v. Hutchinson Plumbing Heating Cooling, 2015 WL 853040 (App. Div. March 2, 2015), the New Jersey Appellate Division emphasized that an employer that seeks to rely on the Faragher/Ellerth affirmative defense must conduct workplace discrimination and harassment training, in addition to maintaining an anti-discrimination and harassment policy. Here, the court held that the employer was not entitled to summary judgment based on the Faragher/Ellerth affirmative defense because factual disputes existed as to the effectiveness of the company’s anti-discrimination policy. The court noted that the policy was incomplete and the company had never conducted any training on workplace discrimination or harassment. The effectiveness of the policy was thus suspect, precluding summary judgment to the employer on the basis of the affirmative defense.
