As we reported in the March issue of NJ COPS, Judge Mary Jacobson ruled in favor of the NJ State PBA and other New Jersey labor unions in concluding that the Gov. Christie administration violated its Chapter 78 funding obligations by failing to make the full pension contribution for Fiscal Year (F/Y) 2015. That same issue is pending in a new lawsuit which we just filed for F/Y 2016.
The state recently filed an appeal of that decision to the New Jersey Appellate Division. Shortly thereafter, it filed a request to the State Supreme Court to hear
the case directly. We have supported that application because this issue is far too important to be delayed through review of an intermediate appellate court and must ultimately be addressed by the Supreme Court.
We are pleased to advise that the Supreme Court has now taken the case and agreed to hear it on an expedited basis. Briefs are due by the time we go to press, and oral argument on the case is scheduled for May 6.
This is shaping up to be one of the most important cases decided by the Supreme Court this term, or possibly any term. It is likely to address the issues of how to characterize pension rights, the circumstances in which pension obligations can be relaxed and what obligation the state and the governor have to make the contribution amounts owed for 2015 and 2016. We expect a decision by June 30, and, of course, we will keep you advised.
Court sets standards for employer liability for harassment/hostile work environment complaints
Recently, the New Jersey Supreme Court issued a significant decision which will have an impact on the ability of a law enforcement officer, and any public employee, to pursue harassment complaints. The decision also addresses when, and under what circumstances, an employer can be held liable for the actions of supervisory officers and employees. In Aguas v. State, the Supreme Court concluded that the State Department of Corrections (DOC) may have had a valid defense to a correction officer’s complaint of sexual harassment by two of her supervisors if the employee did not reasonably follow the DOC’s harassment policy. The court also adopted a broader definition of who can be considered a “supervisor” for purposes of establishing an employer’s liability.
Like most employers, the DOC had issued a written policy prohibiting discrimination in the workplace, and prohibiting sexual or gender-based harassment of any kind, among other prohibited conduct. The policy encouraged employees to report incidents to a supervisor or to the DOC’s Equal Employment Division but did not require employees to submit the report in writing. A corrections officer subsequently claimed that she complained of sexual harassment by two of her supervisors on several occasions. While there was a dispute over whether the corrections officer reported the incidents in accordance with the policy, there was no dispute that she was aware of the policy and had, in fact, filed complaints in the past.
The officer filed suit under New Jersey’s Law Against Discrimination (LAD). The trial court granted the state’s motion for summary judgment and dismissed the correction officer’s complaint. On appeal, the Appellate Division affirmed the dismissal of her complaint. Because the Appellate Division’s decision was unanimous, the corrections officer petitioned the Supreme Court to hear the appeal. The court granted her request. The Supreme Court reversed the Appellate Division’s decision and remanded it for further proceedings. Specifically, the court held that the state could avoid liability by demonstrating that it exercised reasonable care to prevent and correct any sexually harassing behavior. It could further support its case by demonstrating that the corrections officer unreasonably failed to report her complaint or to take advantage of any preventive or corrective opportunities provided by the DOC’s policy.
Additionally, the court rejected the state’s claim that it could only be held liable by supervisors who were empowered by the employer to take concrete employment actions against an employee or, in other words, to make a significant change in an officer’s employment status such as hiring, firing, failing to promote or reassign or causing a significant change in benefits. Instead, the court adopted a much-less-restrictive standard by defining a supervisor as one who is in charge of an officer’s daily work activities or had the authority to take or recommend employment actions affecting the employee or to direct the employee’s day-to-day activities in the workplace.
This decision will have an impact on the extent to which an employee must comply with a public employer’s workplace harassment policy. It will also have an impact on whether the actions of supervisory law enforcement officers can create liability for an employer even if they are not involved in establishing or setting policy, or in actually making changes in an employee’s status.
And while this case involved claims of sexual harassment, it is not limited to only that type of harassment or discrimination. The same, or similar, issues could arise for any claims of unlawful harassment or discrimination prohibited by the LAD. In such cases, the courts or administrative agencies will look to whether the employer had a written policy, whether the policy was followed and who committed the alleged harassing conduct, among other issues. The Aguas decision will not only affect whether an employee can demonstrate liability based upon an employer’s workplace discrimination policy, but also it will affect supervisory law enforcement officers and whether their conduct may result in liability of the employer or that supervisor.
Most public employers, if they want to try to avoid liability, have adopted workplace harassment/discrimination polices. The case emphasizes the importance of law enforcement officers being familiar with the policies adopted by their employers, and to follow those policies if a claim of prohibited harassment and/or a hostile workplace environment based on prohibited discrimination is being contemplated. By the same token, it is important that supervisory law enforcement officers become familiar with the policies adopted by their employers so any complaints that are made can be properly dealt with pursuant to the terms of the policy. The actions or inaction of supervisory officers may result in liability on the part of the employer and perhaps also discipline of the supervisor.