SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

Ilda Aguas v. State of New Jersey (A-35-13) (072467)

Argued September 23, 2014 -- Decided February 11, 2015

PATTERSON, J., writing for a majority of the Court.

In this appeal, the Court considers two issues that were generally addressed, but not expressly decided, in 

Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 592 (1993), and subsequent decisions: (1) the impact of an employer’s 

anti-harassment policy on an employee’s claims of negligence or recklessness and vicarious liability; and (2) the 

definition of a supervisor for purposes of a hostile work environment sexual harassment claim.

In 1999, the Department of Corrections (DOC) instituted a written policy prohibiting discrimination in the 

workplace, and mandated that all employees be trained with respect to it. The policy incorporates procedures with 

regard to reporting, investigating, and remediating claims of misconduct, and “encourages” employees to promptly 

report incidents of harassment. Plaintiff, a corrections officer, was hired in 2004, and received a copy of the policy. 

Plaintiff was supervised by Darryl McClish, the highest-ranking supervisor during her shift. McClish 

oversaw the work of sixty employees, and was assisted by two male officers, Sergeant Hill and Sergeant Sands. 

Plaintiff alleges that, beginning in October 2009, McClish sexually harassed her on several occasions, and, on one 

occasion, Hill made inappropriate comments toward her and directed a female officer to pat-frisk her. The parties 

dispute the timing of plaintiff’s reports of sexual harassment, and plaintiff did not file a written complaint with the 

DOC. On March 8, 2010, the DOC’s Equal Employment Division (EED) advised plaintiff that it had initiated an 

investigation of her verbal complaint of sexual harassment. After several weeks and twenty interviews, the EED 

investigator ultimately concluded that plaintiff’s allegations were unsubstantiated.

On March 10, 2010, two days after the EED commenced its investigation, plaintiff filed this action alleging 

that McClish and Hill subjected her to a hostile work environment based on her gender, and that the State retaliated 

against her because of her objections to that harassment, in violation of the New Jersey Law Against Discrimination, 

N.J.S.A. 10:5-1 to -49 (LAD). Plaintiff did not allege that the DOC took any tangible employment action against 

her. In its answer, the State pled, as affirmative defenses, its “prompt and remedial action” in response to plaintiff’s 

claim, its policy against discrimination, harassment and retaliation, and its “thorough investigation” of plaintiff’s 

complaint. Following discovery, the trial court granted summary judgment to the State. The court held that plaintiff 

had presented a prima facie showing that she had been subjected to severe and pervasive sexual harassment, and that 

the conduct created a hostile or abusive work environment for her. It concluded, however, that the State had 

established an affirmative defense, determining that the DOC’s policy required the filing of a written complaint by 

an employee. The trial court thus held that Plaintiff had failed to take steps required by the policy. 

Plaintiff appealed, and an Appellate Division panel affirmed the trial court’s grant of summary judgment. 

The panel agreed with the trial court that the State had established an affirmative defense, and rejected plaintiff’s 

claim that the State was liable under the agency principles of Restatement § 219(2)(d), holding that plaintiff had 

failed to show that McClish used his authority to control her day-to-day working environment to aid his sexual 

harassment of her. The Court granted plaintiff’s petition for certification. 216 N.J. 86 (2013).

HELD: For claims alleging vicarious liability for supervisory sexual harassment under Restatement § 219(2)(d), the 

Court adopts as the governing standard the test set forth by the United States Supreme Court in Burlington Industries v. 

Ellerth, 524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). The employer in a 

hostile work environment sexual harassment case may assert as an affirmative defense that it “exercised reasonable care 

to prevent and correct promptly any sexually harassing behavior,” and “the plaintiff employee unreasonably failed to 

take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” 

provided that the employer has not taken an adverse tangible employment action against the plaintiff employee. 
2

1. In Lehmann v. Toys ‘R’ Us, Inc., this Court held that an employer may be vicariously liable, in accordance with 

principles of agency law, for sexual harassment committed by a supervisor that results in a hostile work 

environment. 132 N.J. 587, 592 (1993). The agency principles adopted by the Court in Lehmann are set forth in 

Restatement § 219, and, since this Court’s decision in Lehmann, courts have recognized two primary categories of 

claims against employers for sexual harassment committed by their employees under Restatement § 219: (1) direct 

causes of action against the employer for negligence or recklessness under Restatement § 219(2)(b), and (2) claims 

for vicarious liability under Restatement § 219(2)(d). (pp. 17-22)

2. The Court turns first to plaintiff’s claim for negligence and recklessness under Restatement § 219(2)(b). In 

Gaines v. Bellino, 173 N.J. 301, 312-14 (2002), the Court identified five factors that are relevant to a negligence 

claim against an employer in a sexual harassment case. Under the Gaines analysis, the DOC’s anti-harassment 

policy is relevant to the elements of plaintiff’s Restatement § 219(2)(b) cause of action. Thus, if plaintiff’s 

negligence and recklessness claim is challenged on remand, or is tried before a jury, evidence of the State’s antiharassment policy should be considered in accordance with the factors identified in Gaines. (pp. 23-25)

3. With regard to claims pursuant to Restatement § 219(d)(2), the Court’s prior jurisprudence strongly supports the 

availability of an affirmative defense, based on the employer’s creation and enforcement of an effective policy 

against sexual harassment, in a vicarious liability claim based on Restatement § 219(d)(2). Although the Court did 

not delineate in Lehmann the precise role that an anti-sexual harassment policy should play in a vicarious liability 

sexual harassment case brought under Restatement § 219(2)(d), it foresaw a fact-specific inquiry in which the 

employer’s implementation of a meaningful anti-harassment policy, or its failure to do so, would be, in many cases, 

an important factor. The Court’s subsequent authority affirms this principle. See, e.g., Cavuoti v. New Jersey 

Transit Corp., 161 N.J. 107, 113, 120-21 (1999); Gaines, supra, 173 N.J. at 320. (pp. 25-30)

4. As in other LAD analyses, the Court also considers federal law construing Title VII with respect to vicarious 

liability claims premised on principles of agency. In Ellerth and Faragher, the Supreme Court integrated the agency 

principles of Restatement § 219(2)(d) with the legislative objective of deterring sexual harassment by promoting 

effective anti-harassment policies, and adopted a two-pronged affirmative defense to liability or damages. This 

Court concurs with the Supreme Court that the Ellerth/Faragher analysis provides a fair and practical framework for 

supervisor sexual harassment cases, and, accordingly, expressly adopts the Ellerth/Faragher analysis for such 

matters in which a hostile work environment is claimed pursuant to the LAD, and no tangible employment action is 

taken. Thus, in further proceedings in this case, the State may avoid vicarious liability under Restatement § 

219(2)(d) by demonstrating by a preponderance of the evidence that the DOC exercised reasonable care to prevent 

and correct promptly any sexually harassing behavior, and that plaintiff unreasonably failed to take advantage of any 

preventive or corrective opportunities provided by the DOC, or to avoid harm otherwise. (pp. 31-42)

5. This matter also presents a second issue, namely the definition of a supervisor for purposes of claims based on 

sexual harassment giving rise to a hostile work environment. The Court in Lehmann did not expressly define 

“supervisor” for these purposes. It alluded, however, to the “power delegated to [a supervisor] to control the day-today working environment,” and distinguished between a “supervisor” and the employer’s “upper management.” 

Lehmann, supra, 132 N.J. at 620, 622-23. The Court thus suggested that the term supervisor included a broader 

range of managers than the senior executives who set policy for an employer. In its decision today, the Court, 

therefore, declines to adopt the more restrictive definition of “supervisor” recently prescribed by the Supreme Court 

majority in Vance v. Ball State University, 133 S. Ct. 2434, 2443 (2013). The Court agrees instead with the Equal 

Employment Opportunity Commission, and adopts its more expansive definition that includes not only employees 

granted the authority to make tangible employment decisions, but also those placed in charge of the complainant’s 

daily work activities. Thus, an allegedly harassing employee is the complainant’s supervisor if that employee had 

the authority to take or recommend tangible employment actions affecting the complaining employee, or to direct 

the complainant’s day-to-day activities in the workplace. (pp. 42-48)

6. If the trial court is called upon to determine plaintiff’s punitive damages claim on remand, it should assess 

whether plaintiff has shown by clear and convincing evidence that the DOC committed “egregious conduct,” and if 

so, whether she has presented clear and convincing evidence that “upper management” either participated directly in 

sexual harassment, or showed “willful indifference.” The court should assess such claims in accordance with the 

Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17 (PDA) and this Court’s prior holdings. (pp. 48-51)
3

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court 

for proceedings consistent with this opinion.

JUSTICE ALBIN, DISSENTING, joined by CHIEF JUSTICE RABNER, expresses the view that the 

LAD, under Lehmann, provided greater protection than federal law in hostile work environment cases, and that 

Lehmann did not authorize an affirmative defense applied to supervisory liability under the Restatement § 219(2)(d) 

approach.

JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON and JUDGE CUFF (temporarily 

assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion in 

which CHIEF JUSTICE RABNER joins.
1

SUPREME COURT OF NEW JERSEY

A-35 September Term 2013

072467

ILDA AGUAS,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

Defendant-Respondent.

Argued September 23, 2014 – Decided February 11, 2015

On certification to the Superior Court, 

Appellate Division.

Paul R. Castronovo argued the cause for 

appellant (Castronovo & McKinney, attorneys; 

Mr. Castronovo and Sara Fern Meil, of 

counsel; Mr. Castronovo, Ms. Meil, and Megan 

Frese Porio, on the briefs).

Jessica S. Allen, Assistant Attorney 

General, argued the cause for respondent 

(John J. Hoffman, Attorney General of New 

Jersey, attorney; Lewis A. Scheindlin, 

Assistant Attorney General, of counsel; Gail 

R. Beran, Deputy Attorney General, on the 

briefs).

Thaddeus P. Mikulski, Jr., argued the cause 

for amicus curiae National Employment 

Lawyers Association of New Jersey.

Mark A. Saloman argued the cause for amicus

curiae Employers Association of New Jersey 

(Proskauer Rose, attorneys; Mr. Saloman, 

Nicholas M. Tamburri, and John J. Sarno, on 

the brief).

JUSTICE PATTERSON delivered the opinion of the Court.
2

In Lehmann v. Toys ‘R’ Us, Inc., this Court held that an 

employer may be vicariously liable, in accordance with 

principles of agency law, for sexual harassment committed by a 

supervisor that results in a hostile work environment. 132 N.J.

587, 592 (1993). Citing Restatement (Second) of Agency § 219(2)

[hereinafter Restatement], the Court held that when a supervisor 

acts beyond “the scope of his or her employment, the employer 

will be vicariously liable if the employer contributed to the 

harm through its negligence, intent, or apparent authorization 

of the harassing conduct, or if the supervisor was aided in the 

commission of the harassment by the agency relationship.” Id.

at 624. 

In this case, plaintiff Ilda Aguas (Aguas), a corrections 

officer, alleges that two of her supervisors subjected her to 

sexual harassment in the workplace. Aguas asserted negligence 

and vicarious liability claims premised on the New Jersey Law 

Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD). She 

appeals from the Appellate Division’s decision affirming the 

trial court’s grant of summary judgment dismissing her claims. 

Aguas’s appeal requires that we determine two issues that 

were generally addressed, but not expressly decided, in Lehmann

and subsequent decisions by this Court. First, we address the 

impact of an employer’s anti-harassment policy on an employee’s 

negligence or recklessness claim under Restatement § 219(2)(b), 
3

and on a vicarious liability claim under Restatement §

219(2)(d). We reaffirm that an employer’s implementation and 

enforcement of an effective anti-harassment policy, or its 

failure to maintain such a policy, is a critical factor in 

determining negligence and recklessness claims under Restatement

§ 219(2)(b).

For claims alleging vicarious liability for supervisory 

sexual harassment under Restatement § 219(2)(d), we adopt as the 

governing standard the test set forth by the United States 

Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, 

765, 118 S. Ct. 2257, 2270, 141 L. Ed. 2d 633, 655 (1998) and 

Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S. Ct.

2275, 2292-93, 141 L. Ed. 2d 662, 689 (1998). Under the 

Ellerth/Faragher analysis, the employer in a hostile work 

environment sexual harassment case may assert as an affirmative 

defense to vicarious liability that it “exercised reasonable 

care to prevent and correct promptly any sexually harassing 

behavior,” and “the plaintiff employee unreasonably failed to 

take advantage of any preventive or corrective opportunities 

provided by the employer or to avoid harm otherwise,” provided 

that the employer has not taken an adverse tangible employment 

action against the plaintiff employee. Ellerth, supra, 524 U.S.

at 765, 118 S. Ct. at 2270, 141 L. Ed. 2d at 655; Faragher, 
4

supra, 524 U.S. at 807-08, 118 S. Ct. at 2292-93, 141 L. Ed. 2d 

at 689. 

The Ellerth/Faragher affirmative defense derives from 

agency principles adopted by this Court in Lehmann. It furthers

the LAD’s purpose of eliminating sexual harassment in the 

workplace by motivating employers to maintain effective antiharassment policies, and by encouraging employees to take prompt 

action against harassing supervisors in accordance with those 

policies. Lehmann, supra, 132 N.J. at 626. The affirmative 

defense is consonant with this Court’s prior jurisprudence and 

advances the legislative goal of the LAD. 

Second, we consider the factors that trial courts should 

apply when determining whether an employee, accused of sexually

harassing another employee, is that individual’s supervisor -- a 

term undefined in the LAD and our prior case law -- for purposes 

of a hostile work environment sexual harassment claim. We hold 

that an allegedly harassing employee is the complainant’s 

supervisor if that employee had the authority to take or 

recommend tangible employment actions affecting the complaining 

employee, or to direct the complainant’s day-to-day activities 

in the workplace. 

So that the trial court may decide this case in accordance 

with these standards, we reverse the Appellate Division’s
5

affirmance of summary judgment dismissing Aguas’s claims and 

remand this matter to the trial court for further proceedings.

I.

Effective on December 16, 1999, the New Jersey Department 

of Corrections (DOC) instituted a written policy prohibiting 

discrimination in the workplace and mandated that all employees 

be trained with respect to it. The policy states a commitment 

“to providing every State employee and prospective employee with 

a work environment free from discrimination or harassment.” It 

proscribes “sexual (or gender-based) harassment of any kind[.]”

Among other prohibited behaviors, the policy bars “[u]nwanted 

physical contact such as intentional touching, grabbing, 

pinching, brushing against another’s body or impeding or 

blocking movement,” as well as “[v]erbal, written, or electronic 

sexually suggestive or obscene comments, jokes or 

propositions[.]” 

The DOC policy imposes special responsibilities on 

supervisors. It charges supervisors to ensure “a work 

environment that is free from any form of 

discrimination/harassment” and subjects supervisors who fail to 

meet its requirements with sanctions that may include 

termination of employment. 

The DOC policy incorporates “the State of New Jersey Model 

Procedures with regard to reporting, investigating, and where 
6

appropriate, remediating claims of discrimination/harassment,” 

pursuant to N.J.A.C. 4A:7-3.2.1 It requires the designation of a 

responsible individual or individuals to handle employee 

discrimination and harassment complaints. The policy

“encourages” employees subjected to harassment to “promptly 

report the incident(s) to either a supervisor, or directly to 

the [DOC’s] Equal Employment Division/Affirmative Action 

Officer,” without specifying that the employee must report the 

incident in writing. The policy mandates that the DOC conduct

investigations of such complaints “in a prompt, thorough and 

impartial manner” that respects “the privacy of all persons 

involved.” 

The DOC Commissioner is charged with making a final 

determination as to whether a policy violation has occurred. If 

a complaint is substantiated, the DOC is required to “take 

prompt and appropriate remedial action to stop the behavior and 

deter its reoccurrence,” including interim separation of the 

alleged harasser from the complainant employee pending a final 

determination. The DOC policy bars retaliation against a 

complaining employee.

 

1 N.J.A.C. 4A:7-3.1 generally sets forth the State’s policy 

prohibiting hostile work environment harassment and other forms 

of discrimination in the workplace. The State policy governs 

all State employees and all employment practices, and mandates 

that every State agency implement procedures for internal 

complaints of harassment. N.J.A.C. 4A:7-3.1(a), (g).
7

In 2004, Aguas was hired by the DOC as a Corrections 

Officer Recruit. The following year, she became a Senior 

Corrections Officer, assigned to the third shift, 10:00 p.m. to 

6:00 a.m., at the Edna Mahan Correctional Facility for Women 

(Edna Mahan). Aguas acknowledged that she received a copy of 

the DOC anti-discrimination and harassment policy, but denied 

receiving training with respect to that policy. However, Aguas 

twice instituted written complaints pursuant to the DOC’s antidiscrimination policy, the first a discrimination complaint 

filed in 2005 against a female co-worker, and the second a 

workplace violence complaint filed in 2007 against a different 

female co-worker. The DOC found both complaints to be 

unsubstantiated.

Aguas was supervised by Darryl McClish (McClish), an Area 

Lieutenant who has worked for the DOC since 1989 and at Edna 

Mahan since 2009. During the third shift, McClish was the

highest-ranking supervisor at the correctional facility, 

overseeing the work of sixty employees. He was assisted in that 

role by two male officers, Sergeant Robin Hill (Hill) and 

Sergeant Eric Sands (Sands). 

Aguas alleges that McClish sexually harassed her on several 

occasions, beginning in October 2009. She asserts that on one 

evening that month, as she completed her shift and left the 

facility, McClish stood next to her very closely and asked “are 
8

we going to a telly,” which she interpreted as a reference to a 

motel. Aguas contends that McClish then made a comment about

another officer, Lieutenant Rudolph Walz (Walz), suggesting that 

Aguas had a romantic relationship with Walz. McClish denies 

this allegation.

Later the same evening, Aguas took her handcuffs home in 

contravention of the DOC policy, and McClish called and demanded 

her immediate return to the correctional facility. Aguas 

alleges that when she returned with the handcuffs, McClish 

sniffed the handcuffs and asked, “[w]here you been? If you just 

want to borrow them, let me know.” She contends that McClish 

then “sat in [her] lap face-to-face while blowing his whistle 

and gave her a ‘lap dance’ by grinding his pelvis into [her] and 

shaking his face close to her face.” Aguas alleges that McClish 

persisted in this behavior despite her warning to stop, and that 

another corrections officer and a lieutenant on the scene 

purposely looked in the other direction while the conduct was 

occurring. McClish agrees that he ordered Aguas to return to 

the facility with the handcuffs, but otherwise denies Aguas’s

allegations regarding this incident, and denies that he touched 

Aguas with his waist, hip or groin on any occasion.

Aguas next alleges that later in the same month, McClish 

massaged her shoulders, out of view of any other employees, when 

he and Aguas were conducting nightly rounds of the corrections 
9

facility. She asserts that he then “stuck out his buttocks 

toward [Aguas], flexed his arms and said, ‘[d]o me a favor and 

take my radio off my hip. I worked out and I’m sore,’” a 

direction that she declined to follow. McClish denies both 

allegations.

Aguas contends that a few days after that incident, McClish 

commented twice, in her presence, about her alleged relationship 

with Walz. She asserts that immediately after she complained to 

McClish about the comments, McClish approached her from behind, 

“put her in a hold with her hands behind her back and pulled up 

to her shoulder blades.” According to Aguas, McClish then “bent 

[Aguas] over the table with his genital area touching [her] 

buttocks and repeatedly said, ‘[w]hat are you going to do?’” 

Aguas asserts that she immediately kicked and head-butted 

McClish repeatedly and that the two fell to the floor, prompting 

McClish to release her. She alleges that McClish then “started 

bobbing like a boxer” and repeated his question, “[w]hat are you 

going to do?” 

According to Aguas, when she returned from a trip to the 

bathroom a few minutes later, “McClish got very close behind 

[her] and start[ed] dancing, whooping, waving his arms, and 

blowing his whistle while repeatedly saying ‘[w]oohoo!’ as if 

[she] was a stripper.” Aguas claims that McClish then made a 

derogatory comment about Walz. She asserts that when she 
10

confronted McClish about this behavior days later, telling 

McClish that his alleged actions made her feel uncomfortable and 

“like a whore, like a slut,” he responded that he was not sorry. 

McClish denies these allegations in their entirety, and 

maintains that the conversations recounted by Aguas did not 

occur.

Aguas contends that on January 23, 2010, she set off the 

alarm in the metal detector at Edna Mahan. According to Aguas, 

Hill asked her whether she had “piercings in [her] breasts 

because I know you don’t need an underwire bra,” and directed a 

female officer to repeatedly pat-frisk Aguas. Hill testified 

that, in compliance with the DOC policy, he ordered a female 

officer to pat-frisk Aguas after she failed to clear the metal 

detector.2 Hill denied making the remark alleged by Aguas. 

Finally, Aguas contends that Sands subjected her to “hyperscrutiny,” selectively reprimanding her for uniform violations 

committed by several officers, for smoking outside on her break 

with a sweater around her shoulders, and for not carrying a red 

pen.

 

2 The DOC policy then in effect required officers to pass through 

a metal detector before entering the facility, and provided that 

if an individual failed to clear the metal detector after four 

attempts, security would be notified and the officer would be 

pat-frisked by another officer of the same gender. 
11

The parties dispute the timing of Aguas’s reporting of her 

sexual harassment allegations. Aguas contends that she reported 

McClish’s harassment to Walz on several occasions beginning in 

October 2009. Walz testified, however, that Aguas reported to 

him only the conversation with Hill involving the metal 

detector, and the excessive scrutiny of her uniform, and that 

she did not complain to him at any time about alleged sexual 

harassment by McClish. 

Aguas reported her allegations that McClish sexually 

harassed her to Captain and Acting Chief Robert Ryan (Ryan), the 

highest officer in command, and Ryan advised her to meet with 

Assistant Administrator Helen Adams (Adams). Aguas asserts that 

she rejected Adams’s advice to report the harassment in writing 

because she feared retaliation. She declined the DOC’s

alternative suggestion that she participate in a group meeting 

with the DOC officials, McClish, Sands and Hill. Aguas contends 

that Adams gave her forms to prepare a written report and a 

referral to the facility’s psychologist. 

According to Aguas, she became distraught at the meeting 

with Adams and was subsequently hospitalized for a migraine and 

placed on medical leave. A few days later, Aguas received two 

text messages from a fellow Edna Mahan officer, which she 

interpreted as a warning not to file a written complaint. Aguas 

did not file a written complaint with the DOC. 
12

On March 8, 2010, the DOC’s Equal Employment Division (EED) 

advised Aguas in writing that it had initiated an investigation 

of her verbal complaint of sexual harassment. Over the next 

several weeks, an EED investigator interviewed Aguas, McClish, 

Walz and seventeen other witnesses, and obtained statements from 

others. The EED investigator summarized her findings in a 

report dated April 21, 2010. The investigator concluded that 

Aguas’s allegations were unsubstantiated, and advised Aguas of 

that conclusion in writing.

II.

On March 10, 2010, two days after the EED commenced its 

investigation of her complaints, Aguas filed this action. She 

named the State as the sole defendant and asserted claims under 

the LAD for compensatory and punitive damages and other relief. 

Aguas alleged that the sexual harassment by McClish and Hill 

subjected her to a hostile work environment based on her gender, 

and that the State retaliated against her because of her 

objections to that harassment, in violation of the LAD. Aguas

did not allege that the DOC took any tangible employment action 

against her. 

In its answer, the State pled, as affirmative defenses, its 

“prompt and remedial action” in response to Aguas’s claim, its 

policy against discrimination, harassment and retaliation, and 

its “thorough investigation” of Aguas’s complaint.
13

Following discovery, the trial court granted the State’s 

motion for summary judgment. The court held that Aguas had 

presented a prima facie showing that she had been subjected to 

severe and pervasive sexual harassment, and that the conduct 

created a hostile or abusive work environment for her. It 

concluded, however, that the State had established an 

affirmative defense. The court noted that the DOC had a written 

policy against discrimination, harassment and retaliation that 

included a procedure for reporting through the EED, a procedure 

that Aguas had used in the past. The trial court construed the 

policy to require the filing of a written complaint by an 

employee. It held that Aguas had failed to take steps required 

by the policy. The trial court therefore dismissed Aguas’s LAD 

sexual harassment claims, based on theories of negligence and 

recklessness, as well as vicarious liability. Due to its 

rejection of Aguas’s claims for compensatory damages, the trial 

court also granted summary judgment dismissing Aguas’s claim for 

punitive damages.3

Aguas appealed, and an Appellate Division panel affirmed 

the trial court’s grant of summary judgment. The panel 

concluded that the State exercised due care in its investigation 

 

3 In a decision that was not appealed, the trial court also 

dismissed Aguas’s retaliation claim.
14

of Aguas’s claim and concurred with the trial court’s dismissal 

of Aguas’s negligence and recklessness claim. It also agreed 

with the trial court that the State had established an 

affirmative defense, by indisputable proof, based upon the DOC’s

adoption and implementation of a policy against discrimination 

and sexual harassment, a policy that Aguas admittedly received

in writing annually. The panel rejected Aguas’s claim that the 

State was liable under the agency principles of Restatement §

219(2)(d), holding that Aguas had failed to show that McClish 

used his authority to control her day-to-day working environment 

to aid his sexual harassment of her. It also affirmed the trial 

court’s dismissal of Aguas’s claim for punitive damages. 

We granted Aguas’s petition for certification. Aguas v. 

State, 216 N.J. 86 (2013). 

III.

Aguas argues that the Appellate Division created a novel 

test, in contravention of this Court’s decision in Lehmann and 

public policy, which requires an employee to file a formal 

report under the employer’s policy before pursuing legal 

remedies. She concedes that an employer may present evidence of 

its implementation and enforcement of an explicit policy against 

sexual harassment and its provision of an effective 

investigatory and remedial procedure in defense of a negligence 

claim. She denies that a plaintiff in a sexual harassment case
15

has the burden of proof, and instead contends that the 

employer’s policy gives rise to an affirmative defense as to 

which the defendant has the burden of proof. Aguas argues that 

in any event, the State cannot establish such a defense based on 

the record in this case. 

Aguas contends that the Appellate Division misapplied 

Lehmann by declining to find the State vicariously liable based 

on principles of agency. She argues that under Lehmann, when a 

supervisor sexually harasses a subordinate, the employer is 

presumed liable whether or not the subordinate reports the 

harassment, and that the Ellerth/Faragher analysis does not 

govern cases involving supervisors under the LAD. Finally, 

Aguas contends that the Appellate Division improperly affirmed 

the dismissal of her claim for punitive damages because she 

established an underlying violation of the LAD. 

The State counters that the DOC implemented an effective 

anti-sexual harassment policy, enforced that policy and took 

immediate remedial action in response to Aguas’s complaint, and 

that it was Aguas’s duty to utilize the grievance procedure. It 

argues that sexual harassment by a supervisor is not a per se 

violation of the LAD except where a tangible employment action 

is taken against the employee who has alleged harassment. The 

State asserts that the United States Supreme Court’s 

Ellerth/Faragher analysis applies to cases involving 
16

supervisors, and that unless the supervisor’s harassment prompts 

a tangible employment action and the plaintiff seeks equitable 

relief, the employer may assert an affirmative defense under 

that analysis.

Amicus curiae National Employment Lawyers Association of 

New Jersey (NELA) argues that the Appellate Division contravened 

Lehmann and other authority by holding that McClish, the 

highest-level manager on his shift at Edna Mahan, lacked

sufficient authority to be considered a supervisor for purposes 

of vicarious liability. NELA asserts that the Appellate 

Division improperly focused on McClish’s authority to discipline 

Aguas and affect her economic status, rather than on his 

capacity to oversee her day-to-day work. NELA argues that New 

Jersey law does not require an employee who is a victim of 

sexual harassment to formally report the harassment in writing 

in order to trigger an investigation and remediation.

Amicus curiae Employers Association of New Jersey (EANJ) 

urges the Court to hold that an employer cannot, as a matter of 

law, be liable for a hostile work environment under the LAD if 

it took prompt remedial action in response to an employee’s 

complaint of sexual harassment. EANJ argues that the DOC 

satisfied its duty of care by implementing and enforcing a 

detailed procedure. It asserts that Aguas should be barred from 

recovering under the LAD because she unreasonably failed to take 
17

advantage of preventive and corrective measures that were 

available to her.

IV.

A.

We first consider the impact of the DOC’s anti-harassment 

policy on Aguas’s two claims for sexual harassment giving rise 

to a hostile work environment: her direct claim for negligence

and recklessness against the State based on Restatement §

219(2)(b), and her claim that the State is vicariously liable 

for sexual harassment committed by McClish and Hill under 

Restatement § 219(2)(d). The decisions that defined these 

claims provide the setting for our analysis.

In Lehmann, supra, this Court recognized sexual harassment 

in the workplace as a form of discrimination that is prohibited 

by the LAD. 132 N.J. at 601 (citing Meritor Sav. Bank v. 

Vinson, FSB, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 

(1986); Erickson v. Marsh & McLennan Co., 117 N.J. 539, 555-56 

(1990)). The Court recognized two forms of sexual harassment 

that are actionable under the LAD. The first is “quid pro quo 

sexual harassment,” in which “an employer attempts to make an 

employee’s submission to sexual demands a condition of his or 

her employment.” Ibid. Aguas does not assert a quid pro quo 

harassment claim in this case.
18

The second cause of action for sexual harassment, at issue

here, is a claim for “hostile work environment sexual 

harassment.” Ibid. To prove this claim, a plaintiff must show

that the harassment “(1) would not have occurred but for the 

employee’s gender; and it was (2) severe or pervasive enough to 

make a (3) reasonable woman believe that (4) the conditions of 

employment are altered and the working environment is hostile or 

abusive.” Id. at 603-04 (emphasis omitted).

As the Court identified the elements of a hostile work 

environment sexual harassment claim in Lehmann, it also 

addressed the issue of employer liability for sexual harassment 

by a supervisor or co-employee. Id. at 615-24. It held that

“the employer is directly and strictly liable for all equitable 

damages and relief” to the extent that an employee subjected to 

discrimination or sexual harassment seeks equitable remedies, 

that is, restoration “to the terms, conditions, and privileges 

of employment the employee would have enjoyed but for the 

workplace discrimination or harassment.” Id. at 617. With 

respect to claims for damages, however, the Court declined to 

hold an employer strictly liable for sexual harassment committed 

by its employee. Ibid. Instead of strict liability, the Court 

adopted as the measure of employer liability a fact-sensitive 

standard derived from the law of agency. Id. at 620.
19

In its rejection of strict liability, the Court relied on

Meritor, then the United States Supreme Court’s sole authority

on hostile work environment sexual harassment cases. Id. at 

618-19 (citing Meritor Sav. Bank, supra, 477 U.S. at 72, 106 S. 

Ct. at 2408, 91 L. Ed. 2d at 63).4 In Meritor, supra, the United 

States Supreme Court majority declined to impose strict 

liability on employers in hostile work environment harassment 

cases and instead invoked the agency principles set forth in 

Restatement §§ 219-237. 477 U.S. at 69-70, 72, 106 S. Ct. at 

2407-08, 91 L. Ed. 2d at 61, 63. In a concurring opinion, 

Justice Marshall urged the adoption of a strict liability 

standard in both quid pro quo and hostile work environment 

cases. Id. at 74-78, 106 S. Ct. at 2409-11, 91 L. Ed. 2d at 64-

66 (Marshall, J., concurring). Justice Stevens joined both 

 

4 The Court “has frequently looked to federal precedent governing 

Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e 

to § 2000e-17 (‘Title VII’), as ‘a key source of interpretive 

authority.’” Id. at 600 (quoting Grigoletti v. Ortho Pharm. 

Corp., 118 N.J. 89, 97 (1990)); see also Quinlan v. CurtissWright Corp., 204 N.J. 239, 261-63 (2010). That rule is not 

absolute; this Court has declined to follow federal law when 

that law sharply diverges from prior authority construing the 

LAD. See, e.g., Alexander v. Seton Hall Univ., 204 N.J. 219, 

232-35 (2010) (declining to follow United States Supreme Court’s 

approach to wage discrimination claims in Ledbetter v. Goodyear 

Tire & Rubber Co., 550 U.S. 618, 127 S. Ct. 2162, 167 L. Ed. 2d 

982 (2007), in light of “settled prior case law” contrary to the 

Supreme Court’s holding.) Thus, we evaluate the analysis 

adopted by federal courts construing Title VII to determine 

whether that analysis furthers the objectives of the LAD and 

comports with our prior holdings.
20

opinions because he shared the majority’s rejection of strict 

liability and the concurring opinion’s construction of Title 

VII. Id. at 73, 106 S. Ct. at 2409, 91 L. Ed. 2d at 64

(Stevens, J., concurring). 

Contrary to the argument of our dissenting colleagues, who 

contend that in Lehmann the Court “declined to follow” the

Meritor majority in favor of Justice Marshall’s strict liability 

approach, post at ___ (slip op. at 9-10), the Court actually 

embraced the agency analysis of the majority in Meritor. It

concurred “with Justice Stevens that there is no inherent 

contradiction between the majority’s adoption of agency 

principles and Justice Marshall’s observation that a 

supervisor’s delegated authority often goes beyond the power to 

hire and fire.” Lehmann, supra, 132 N.J. at 619. The Court 

noted:

We recognize that although we have 

declined to hold employers strictly liable for 

hostile work environment sexual harassment by 

supervisors, we have created a standard that 

may often result in employers being held 

vicariously liable for such harassment. We 

note that there is an important difference 

between strict liability and vicarious 

liability under agency law. Under a strict 

liability standard, an employer would always

be liable for supervisory hostile work 

environment sexual harassment, regardless of 

the specific facts of the case. We think that 

in some cases strict liability would be unjust 

–- for example, “where a supervisor rapes one 

of his subordinates in the workplace.” 
21

[Id. at 623-24 (emphasis in original) (quoting 

Lehmann v. Toys ‘R’ Us, Inc., 255 N.J. Super.

616, 661 (App. Div. 1992) (Skillman, J.A.D., 

dissenting)).]

The agency principles adopted by the Court in Lehmann are set 

forth in Restatement § 219, which recognizes four exceptions to 

the general rule that an employer is not liable for its employee’s 

conduct beyond the scope of his or her employment:

1. A master is subject to liability for the 

torts of his servants committed while acting 

in the scope of their employment.

2. A master is not subject to liability for 

the torts of his servants acting outside the 

scope of their employment, unless:

(a) the master intended the conduct or 

the consequences, or

(b) the master was negligent or reckless, 

or

(c) the conduct violated a non-delegable 

duty of the master, or

(d) the servant purported to act or to 

speak on behalf of the principal and 

there was reliance upon apparent 

authority, or he was aided in 

accomplishing the tort by the existence 

of the agency relation.

[Restatement § 219.]

As the Court noted in Lehmann, supra, the agency principles 

of Restatement § 219 “are sufficiently well-established to 

provide employers with notice of their potential liability, and

also sufficiently flexible to provide just results in the great 
22

variety of factual circumstances presented by sexual harassment 

cases and to accomplish the purposes of the LAD.” 132 N.J. at 

619. 

Since this Court’s decision in Lehmann, our courts have 

recognized two primary categories of claims against employers 

for sexual harassment committed by their employees under 

Restatement § 219. The first is a direct cause of action 

against the employer for negligence or recklessness under 

Restatement § 219(2)(b). See, e.g., Gaines v. Bellino, 173 N.J.

301, 312-14 (2002). The second is a claim for vicarious 

liability under Restatement § 219(2)(d). See ibid. Although 

direct claims for negligence or recklessness under Restatement § 

219(2)(b) and claims for vicarious liability under Restatement § 

219(2)(d) are often discussed in tandem, they are analytically 

distinct from and independent of one another. When both are 

pled in a sexual harassment action, as they are in this case, 

the two claims must be addressed separately. 

Guided by our jurisprudence and agency principles adopted 

as the benchmark for employer liability, we consider in turn the 

relevance of the DOC’s anti-harassment policy to Aguas’s 

negligence and recklessness claim based on Restatement § 

219(2)(b), and the role of that policy in Aguas’s vicarious 

liability claim premised upon Restatement § 219(2)(d). 

B.
23

As the parties agree, the DOC’s anti-harassment policy is 

central to the determination of Aguas’s claim for negligence and 

recklessness under Restatement § 219(2)(b). The negligence 

standard imposes on Aguas the burden to prove that the State 

failed to exercise due care with respect to sexual harassment in 

the workplace, that its breach of the duty of due care caused 

the plaintiff’s harm, and that she sustained damages. See 

generally, Komlodi v. Picciano, 217 N.J. 387, 409 (2014); 

Robinson v. Vivirito, 217 N.J. 199, 208 (2014) (citing Jersey 

Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 

(2013); Weinberg v. Dinger, 106 N.J. 469, 484 (1987)).

In Gaines, supra, the Court identified five factors that 

are relevant to a negligence claim against an employer in a 

sexual harassment case. 173 N.J at 313. 

Those factors include[] the existence of: (1) 

formal policies prohibiting harassment in the 

workplace; (2) complaint structures for 

employees’ use, both formal and informal in 

nature; (3) anti-harassment training, which 

must be mandatory for supervisors and 

managers, and must be available to all 

employees of the organization; (4) the 

existence of effective sensing or monitoring 

mechanisms to check the trustworthiness of the 

policies and complaint structures; and (5) an 

unequivocal commitment from the highest levels 

of the employer that harassment would not be 

tolerated, and demonstration of that policy 

commitment by consistent practice. 

[Ibid. (citing Lehmann, supra, 132 N.J. at 

620).]
24

Applying that standard to the Restatement § 219(2)(b) negligence 

claim before it, the Court found that because of the 

deficiencies in the employer’s policy, a genuine issue of 

material fact barred summary judgment with respect to two of the 

factors relevant to a negligence claim against an employer under 

Restatement § 219(2)(b). Id. at 315-17, 319. 

The Court further noted that Lehmann had recognized that 

“the existence of effective preventative mechanisms may provide 

evidence of due care on the part of the employer.” Id. at 314 

(citing Lehmann, supra, 173 N.J. at 621-22). It observed that 

in Lehmann, the Court declined “to hold that the absence of such 

mechanisms, or any part of them, automatically constituted 

negligence, and [] similarly rejected the converse proposition 

that the presence of such mechanisms categorically demonstrated 

the absence of negligence.” Ibid. (citing Lehmann, supra, 132 

N.J. at 621-22). As the Court stated in Gaines, however, “[t]he 

efficacy of an employer’s remedial program is highly pertinent 

to an employer’s defense.” Ibid. 

Under the Gaines analysis, the DOC’s anti-harassment policy 

is relevant to the elements of Aguas’s Restatement § 219(2)(b) 

cause of action. If Aguas’s negligence and recklessness claim 

under Restatement § 219(2)(b) is challenged in a dispositive 

motion on remand, or is tried before a jury, evidence of the 
25

State’s anti-harassment policy should be considered in 

accordance with the factors identified in Gaines. 

C.

Under Restatement § 219(d)(2), an employee may assert that 

the employer is vicariously liable for sexual harassment 

committed by its employee because the sexual harasser purported 

to act on the employer’s behalf and “there was reliance upon 

[his or her] apparent authority,” or because the harasser “was 

aided in [his or her misconduct] by the existence of an agency

relation[ship]” with his or her employer. See Lehmann, supra, 

132 N.J. at 619.

In Lehmann, the Court held that a vicarious liability claim 

under Restatement § 219(2)(d) “requires a detailed fact-specific 

analysis” and stated a four-part test for the factfinder: 

1. Did the employer delegate the authority 

to the supervisor to control the situation of 

which the plaintiff complains . . . ?

2. Did the supervisor exercise that 

authority?

3. Did the exercise of authority result in 

a violation of [the LAD]?

4. Did the authority delegated by the 

employer to the supervisor aid the supervisor 

in injuring the plaintiff?

[Id. at 620 (citation omitted).]
26

If each of these questions are answered in the affirmative, 

“then the employer is vicariously liable for the supervisor’s 

harassment under [Restatement] § 219(2)(d).” Ibid.

This Court’s prior jurisprudence does not address in detail 

the analytical framework under which an employer’s antiharassment policy may be considered in a hostile work 

environment sexual harassment claim involving a supervisor. 

Nonetheless, that jurisprudence strongly supports the 

availability of an affirmative defense, based on the employer’s 

creation and enforcement of an effective policy against sexual 

harassment, in a vicarious liability claim based on Restatement

§ 219(d)(2). 

First, the Restatement provision at the heart of the 

Court’s analysis in Lehmann sets forth agency principles that 

directly implicate an employer’s policy, or its lack of a 

policy, against sexual harassment in the workplace. See id. at 

619 (citing Restatement § 219(2)(d)). The existence and 

enforcement of a policy charging supervisors with ensuring a 

harassment–free workplace is central to the questions raised by 

Restatement § 219(2)(d): whether a harassing supervisor 

“purport[s] to act or to speak on behalf of the principal,” 

whether “there was reliance upon [that supervisor’s] apparent 

authority,” and whether a harasser was “aided in accomplishing” 
27

the harassment by “the existence of the agency relation.” 

Restatement § 219(2)(d).5 

Second, in rejecting strict liability, the Court in 

Lehmann, supra, clearly envisioned that an employer would be 

permitted to argue that vicarious liability should not be 

imposed in the circumstances of the individual case. See 132 

N.J. at 624 (explaining that “[u]nder agency law, an employer’s 

liability for a supervisor’s sexual harassment will depend on 

the facts of the case”).

Third, the Court held that any legal test governing 

vicarious liability claims should motivate employers to create 

and enforce a policy against harassment. Id. at 626. The Court 

observed that an effective legal test allows employees “to know 

 

5 Our dissenting colleagues argue that Model Jury Charge (Civil)

2.25 demonstrates that New Jersey law rejects an affirmative 

defense in a supervisory sexual harassment claim against an 

employer. Post at ___ (slip op. at 5-7). Following Lehmann, 

this Court has never addressed the jury charge that should be 

given in a supervisory sexual harassment case. If, as the 

dissent suggests, the Model Jury Charge endorses a strict 

liability test in cases such as this, then the charge is 

inconsistent with Lehmann, Cavuoti and Gaines. See Lehmann, 

supra, 132 N.J. at 617-20; Gaines, supra, 173 N.J. at 314; 

Cavuoti, supra, 161 N.J. at 120-21. In fact, the jury charge 

cited by the dissent derives from the Lehmann Court’s adoption 

of the inquiry set forth in Restatement § 219(2)(d): whether the 

supervisor “purported to act or to speak on behalf of the 

principal and there was reliance upon apparent authority, or was 

aided in accomplishing the tort by the existence of the agency 

relation.” Restatement § 219(2)(d). The Ellerth/Faragher

affirmative defense, which directly addresses that question, 

should be included in our Model Charge. 
28

their rights in a given set of circumstances,” and permits 

“employers to set policies and procedures that comply with that 

test.” Id. at 603. Noting that “[c]ourtrooms are not the best 

place to prevent or remedy a hostile work environment,” id. at 

625, the Court observed:

The most important tool in the prevention 

of sexual harassment is the education of both 

employees and employers. Consensus among 

employees and employers should be the goal. 

We think that providing employers with the 

incentive not only to provide voluntary 

compliance programs but also to insist on the 

effective enforcement of their programs will 

do much to ensure that hostile work 

environment discrimination claims disappear 

from the workplace and the courts.

[Id. at 626.]

The Court’s intention that its legal test motivate 

employers to implement and enforce “voluntary compliance 

programs” strongly signals that such compliance programs, if 

effective and enforced, may give rise to an affirmative defense 

to an LAD claim. Ibid. 

Thus, although the Court did not delineate in Lehmann the 

precise role that an anti-sexual harassment policy should play 

in a vicarious liability sexual harassment case brought under 

Restatement § 219(2)(d), it foresaw a fact-specific inquiry in 

which the employer’s implementation of a meaningful antiharassment policy, or its failure to do so, would be, in many 

cases, an important factor. See id. at 620, 622-24. 
29

The Court’s subsequent authority affirms this principle. 

In Cavuoti v. New Jersey Transit Corp., a case involving the 

standard for an award of punitive damages against an employer in 

supervisor sexual harassment litigation, the Court reiterated 

that an employer’s anti-harassment policy is a significant 

factor in such cases. 161 N.J. 107, 113, 120-21 (1999). This 

Court commented that “like the [United States] Supreme Court we 

have afforded a form of a safe haven for employers who 

promulgate and support an active, anti-harassment policy.” Id.

at 120-21. The Court further observed:

A company that develops policies 

reflecting a lack of tolerance for harassment 

will have less concern about hostile work 

environment or punitive damages claims if its 

good-faith attempts include periodic 

publication to workers of the employer’s antiharassment policy; an effective and practical 

grievance process; and training sessions for 

workers, supervisors, and managers about how 

to recognize and eradicate unlawful 

harassment.

[Id. at 121.]

Finally, in Gaines, supra, the Court expressly confirmed 

the availability of an affirmative defense to vicarious 

liability based on an effective policy against sexual 

harassment. It held that “[a] defendant is entitled to assert 

the existence of an effective anti-sexual harassment workplace 

policy as an affirmative defense to vicarious liability; 

however, material issues of disputed fact in the context of a 
30

motion record can deny a defendant summary dismissal based on 

that defense.” 173 N.J. at 320. 

Notwithstanding that clear language, our dissenting 

colleagues inexplicably assert that the Court “never hint[ed] 

that an affirmative defense applied to supervisory liability 

under the Restatement § 219(2)(d) approach.” Post at ___ (slip 

op. at 7). The dissent also asserts that in Gaines, the Court 

stated only that an affirmative defense is available to an 

employer in a negligence case under Restatement § 219(2)(b). 

Post at ___ (slip op. at 8). In fact, the Court expressly 

recognized in Gaines an affirmative defense to a Restatement §

219(2)(d) claim for vicarious liability. See Gaines, supra, 173 

N.J. at 320; see also Godfrey v. Princeton Theological Seminary, 

196 N.J. 178, 200 (2008) (stating that “[t]he means employed by 

an institution to deter harassment, and the enforcement of those 

means, may be considered when assessing that institution’s 

vicarious liability”).

Thus, the Court’s prior case law provides important 

guidance with respect to this issue. In Lehmann, Cavuoti and 

Gaines, the Court acknowledged the value of effective antiharassment policies in combatting sexual harassment in the 

workplace, and recognized that employers will be motivated to 

implement and enforce such policies if their policies provide a 

defense to a claim of vicarious liability. See Gaines, supra, 
31

173 N.J. at 320; Cavuoti, supra, 161 N.J. at 120-21; Lehmann, 

supra, 132 N.J. at 619, 626.

As in other settings involving the LAD, we consider federal 

law construing Title VII with respect to this issue. In Ellerth

and Faragher, the United States Supreme Court addressed Title 

VII vicarious liability claims premised on principles of agency. 

These cases, which had not been decided when this Court decided 

Lehmann, represent part of the evolution in federal law that has 

occurred as employer anti-harassment policies have become more 

prevalent in the workplace.

Ellerth and Faragher arose from a supervisor’s alleged 

sexual harassment of a subordinate, which gave rise to a hostile 

work environment.6 The Supreme Court confirmed that Restatement

§ 219(2)(d) provides the analytical framework for supervisory 

sexual harassment cases because “[t]he agency relationship 

affords contact with an employee subjected to a supervisor’s 

sexual harassment, and the victim may well be reluctant to 

accept the risks of blowing the whistle on a superior.” 

 

6 In Ellerth, an employee alleged that she was subjected to 

sexual harassment by a vice president of the company that 

employed her. Ellerth, supra, 524 U.S. at 747, 118 S. Ct. at 

2262, 141 L. Ed. 2d at 644. In Faragher, a lifeguard sued the 

municipality for which she worked, alleging that her immediate 

supervisors sexually harassed her. Faragher, supra, 524 U.S. at 

780-81, 118 S. Ct at 2280, 141 L. Ed. 2d at 672. 
32

Faragher, supra, 524 U.S. at 803, 118 S. Ct. at 2291, 141 L. Ed.

2d at 686.

The Supreme Court noted, however, that the proper analysis 

“calls not for a mechanical application of indefinite and 

malleable factors set forth in the Restatement . . . but rather 

an inquiry into the reasons that would support a conclusion that 

harassing behavior ought to be held within the scope of a 

supervisor’s employment, and the reasons for the opposite view.” 

Id. at 797, 118 S. Ct. at 2288, 141 L. Ed. 2d at 682. The 

Supreme Court further observed that the agency principles it 

espoused must be consonant with Meritor, in which it had 

declined to impose strict liability on employers in supervisor 

sexual harassment cases. Id. at 804, 118 S. Ct. at 2291, 141 L. 

Ed. 2d at 686 (footnote omitted); see also Ellerth, supra, 524 

U.S. at 755, 118 S. Ct. at 2266, 141 L. Ed. 2d at 649. In 

Faragher, supra, the Court explained that “there is obviously 

some tension between [Meritor’s] holding and the position that a 

supervisor’s misconduct aided by supervisory authority subjects 

the employer to liability vicariously; if the ‘aid’ may be the 

unspoken suggestion of retaliation by misuse of supervisory 

authority, the risk of automatic liability is high.” Faragher, 

supra, 524 U.S. at 804, 118 S. Ct. at 2291, 141 L. Ed. 2d at 686 

(footnote omitted).
33

The Supreme Court identified two “basic alternatives” by 

which Meritor’s rejection of strict liability could be 

reconciled with the Restatement’s analysis: a requirement that 

a plaintiff provide proof that the supervisor affirmatively 

invoked his or her authority, or the recognition of “an 

affirmative defense to liability in some circumstances, even 

when a supervisor has created the actionable environment.” 

Ibid. The Court rejected the first alternative, noting the 

vagueness and impracticality such a test: 

Application of the standard is made difficult

by its malleable terminology, which can be

read to either expand or limit liability in

the context of supervisor harassment. On the

one hand, a supervisor’s power and authority

invests his or her harassing conduct with a

particular threatening character, and in this

sense, a supervisor always is aided by the

agency relation. See Meritor, 477 U.S. at 77,

106 S. Ct. at 2410, 91 L. Ed. 2d at 66

(Marshall, J., concurring in judgment) (“It is

precisely because the supervisor is understood

to be clothed with the employer’s authority

that he is able to impose unwelcome sexual

conduct on subordinates”). On the other hand, 

there are acts of harassment a supervisor 

might commit which might be the same acts a 

co-employee would commit, and there may be 

some circumstances where the supervisor’s 

status makes little difference.

[Ellerth, 524 U.S. at 763, 118 S. Ct. at 2269, 

141 L. Ed. 2d at 654.]

In reconciling the test of Restatement § 219(2)(d) with 

Meritor’s rejection of strict liability, the Supreme Court 

embraced the second alternative: the recognition of an
34

affirmative defense. Id. at 765, 118 S. Ct. at 2270, 141 L. Ed.

2d at 655; Faragher, supra, 524 U.S. at 805-06, 118 S. Ct. at 

2290, 141 L. Ed. 2d at 686. In so doing, the Supreme Court 

emphasized the legislative goal of deterring sexual harassment 

by promoting responsible efforts by employers to detect, 

address, and punish it. Ellerth, supra, 524 U.S. at 764, 118 S. 

Ct. at 2270, 141 L. Ed. 2d at 654; Faragher, supra, 524 U.S. at

805-06, 118 S. Ct. at 2290, 141 L. Ed. 2d at 686. As this Court 

construed the LAD in Lehmann, the Supreme Court held that the 

“‘primary objective’” of Title VII was “not to provide redress 

but to avoid harm.” Faragher, supra, 524 U.S. at 805-06, 118 S. 

Ct. at 2292, 141 L. Ed. 2d at 688 (quoting Albemarle Paper Co. 

v. Moody, 422 U.S. 405, 417, 95 S. Ct. 2371, 5 L. Ed. 2d 280, 

296 (1975)); see also Lehmann, supra, 132 N.J. at 625-26. The 

Court noted in Faragher, supra, the advice of the United States 

Equal Employment Opportunity Commission (EEOC) to employers to 

“‘take all steps necessary to prevent sexual harassment from 

occurring, such as . . . informing employees of their right to 

raise and how to raise the issue of harassment.’” 524 U.S. at 

806, 118 S. Ct. at 2292, 141 L. Ed. 2d at 688 (quoting 29 C.F.R.

§ 1604.11(f) (1997)); see also Ellerth, 524 U.S. at 764, 118 S. 

Ct. at 2270, 141 L. Ed. 2d at 654. 

Given the clear objective of Title VII to prevent sexual 

harassment in the workplace, the Supreme Court arrived at the 
35

conclusion that was reached by this Court in Lehmann, Cavuoti

and Gaines: the imposition of strict liability on an employer 

when it has taken no tangible employment action against the 

plaintiff employee, without respect to that employer’s efforts 

to foster a workplace free from harassment, would contravene the 

legislative goal of deterrence. Faragher, supra, 524 U.S. at 

806, 118 S. Ct. at 2292, 141 L. Ed. 2d at 688; see Ellerth,

supra, 524 U.S. at 764, 118 S. Ct. at 2270, 141 L. Ed. 2d at 

654. The Supreme Court observed:

It would therefore implement clear statutory 

policy and complement the Government’s Title 

VII enforcement efforts to recognize the 

employer’s affirmative obligation to prevent 

violations and give credit here to employers 

who make reasonable efforts to discharge their 

duty. Indeed, a theory of vicarious liability 

for misuse of supervisory power would be at 

odds with the statutory policy if it failed to 

provide employers with some such incentive.

[Faragher, supra, 524 U.S. at 806, 118 S. Ct.

at 2292, 141 L. Ed. 2d at 688; see also

Ellerth, supra, 524 U.S. at 764, 118 S. Ct. at

2270, 141 L. Ed. 2d at 654.]

The Supreme Court identified another factor that was 

central to its analysis. Invoking “the general theory of 

damages,” the Supreme Court observed that a complainant in a 

sexual harassment case “has a duty ‘to use such means as are 

reasonable under the circumstances to avoid or minimize the 

damages’ that result from violations of [Title VII].” Faragher, 

supra, 524 U.S. at 806, 118 S. Ct. at 2292, 141 L. Ed. 2d at 688
36

(quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n.15, 102 S. 

Ct. 3057, 3065 n.15, 73 L. Ed. 2d 721, 732 n.15 (1982)). It 

held that “[i]f the plaintiff unreasonably failed to avail 

herself of the employer’s preventive or remedial apparatus, she 

should not recover damages that could have been avoided if she 

had done so.” Id. at 806-07, 118 S. Ct. at 2292, 141 L. Ed. 2d 

at 688; see also Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at 

2270, 141 L. Ed. 2d at 655. 

In Ellerth and Faragher, the Supreme Court thus integrated 

the agency principles of Restatement § 219(2)(d) with the 

legislative objective of deterring sexual harassment by 

promoting effective anti-harassment policies. It adopted the 

following standard:

An employer is subject to vicarious liability 

to a victimized employee for an actionable 

hostile environment created by a supervisor 

with immediate (or successively higher) 

authority over the employee. When no tangible 

employment action is taken, a defending 

employer may raise an affirmative defense to 

liability or damages, subject to proof by a 

preponderance of the evidence, see Fed. Rule 

Civ. Proc. 8(c). The defense comprises two 

necessary elements: (a) that the employer 

exercised reasonable care to prevent and 

correct promptly any sexually harassing 

behavior, and (b) that the plaintiff employee 

unreasonably failed to take advantage of any 

preventive or corrective opportunities 

provided by the employer or to avoid harm 

otherwise. 

[Faragher, supra, 524 U.S. at 807, 118 S. Ct.

at 2292-93, 141 L. Ed. 2d at 689; see also
37

Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at

2270, 141 L. Ed. 2d at 655.]

The Supreme Court further commented that

[w]hile proof that an employer had promulgated 

an anti-harassment policy with complaint 

procedure is not necessary in every instance 

as a matter of law, the need for a stated 

policy suitable to the employment 

circumstances may appropriately be addressed 

in any case when litigating the first element 

of the defense. 

[Faragher, supra, 524 U.S. at 807, 118 S. Ct.

at 2293, 141 L. Ed. 2d at 689; Ellerth, supra,

524 U.S. at 765, 118 S. Ct. at 2270, 141 L. 

Ed. 2d at 655.] 

We concur with the Supreme Court that the Ellerth/Faragher 

analysis provides a fair and practical framework for supervisor 

sexual harassment cases.7 Consistent with the focus of

Restatement § 219(2)(d) on the nexus between the employer’s 

delegation of authority and the harassment, the Ellerth/Faragher

affirmative defense may not be asserted “when the supervisor’s 

harassment culminates in a tangible employment action, such as 

 

7 Relying on a selection of academic commentary disapproving the 

Ellerth/Faragher analysis, our dissenting colleagues ignore the 

many state appellate courts that have found the affirmative 

defense to provide an equitable and workable framework for 

supervisor sexual harassment claims based on a hostile work 

environment. Post at ___ (slip op. at 13-17), see, e.g., Bank 

One v. Murphy, 52 S.W.3d 540 (Ky. 2001); Frieler v. Carlson 

Mktg. Grp., 751 N.W.2d 558 (Minn. 2008); Parker v. Warren County 

Util. Dist., 2 S.W.3d 170 (Tenn. 1999); Waffle House, Inc. v. 

Williams, 313 S.W.3d 796 (Tex. 2010); Brittell v. Dep’t of 

Corr., 717 A.2d 1254 (Conn. 1998); Natson v. Eckerd Corp., Inc., 

885 So. 2d 945 (Fla. Dist. Ct. App. 4th Dist. 2004); Sangster v. 

Albertson's, Inc., 991 P.2d 674 (Wash. Ct. App. 2000).
38

discharge, demotion or undesirable reassignment.” Faragher, 

supra, 524 U.S. at 808, 118 S. Ct. at 2293, 141 L. Ed. 2d at 

689; Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L. 

Ed. 2d at 655. No affirmative defense is available in such 

cases because “[w]hen a supervisor makes a tangible employment 

decision, there is assurance the injury could not have been 

inflicted absent the agency relation . . . . Tangible 

employment actions are the means by which the supervisor brings 

the official power of the enterprise to bear on subordinates.” 

Ellerth, supra, 524 U.S. at 761-762, 118 S. Ct. at 2269, 141 L. 

Ed. 2d at 653-54.

In addition, the defense provides no protection to an 

employer whose sexual harassment policy fails to provide 

“meaningful and effective policies and procedures for employees 

to use in response to harassment.” Gaines, supra, 173 N.J. at 

317; see also Lehmann, supra, 132 N.J. at 626 (stating that the 

LAD requires an “unequivocal commitment from the top that [the 

employer's opposition to sexual harassment] is not just words[,] 

but backed up by consistent practice”); accord Faragher, supra, 

524 U.S. at 806-07, 118 S. Ct. at 2292, 141 L. Ed. 2d at 688; 

Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L. Ed.

2d at 655. In short, the affirmative defense provides no 

benefit to employers who empower sexually harassing employees 

who take tangible employment actions against their victims, 
39

employers who fail to implement effective anti-harassment 

policies, and employers whose policies exist in name only. 

Conversely, the Ellerth/Faragher framework motivates 

employers and employees to accomplish the paramount objective 

identified by this Court in Lehmann: the prevention of sexual 

harassment. See Lehmann, supra, 132 N.J. at 625-26. The 

prospect of an affirmative defense in litigation is a powerful 

incentive for an employer to unequivocally warn its workforce 

that sexual harassment will not be tolerated, to provide 

consistent training, and to strictly enforce its policy. See

ibid.; accord Faragher, supra, 524 U.S. at 806-07, 118 S. Ct. at 

2292, 141 L. Ed. 2d at 688; Ellerth, supra, 524 U.S. at 764-65, 

118 S. Ct. at 2270, 141 L. Ed. 2d at 655. The Ellerth/Faragher

defense similarly motivates a complainant in a sexual harassment 

case to report the offense internally, and thereby enable his or 

her employer to take immediate action against a harassing 

supervisor or coworker.

In contending that we authorize employers to “hide behind a 

paper anti-discrimination policy,” post at ___ (slip op. at 2), 

and permit defendants to “seek cover behind an ineffective antidiscrimination policy,” post at ___ (slip op. at 4), our 

dissenting colleagues’ rhetoric fundamentally mischaracterizes 

our decision. So that the dissent’s description of our opinion 

does not confuse employers, employees, counsel or trial courts 
40

with respect to this pivotal issue, we restate: an employer that 

implements an ineffective anti-harassment policy, or fails to 

enforce its policy, may not assert the affirmative defense. See

Faragher, supra, 524 U.S. at 806-07, 118 S. Ct. at 2292, 141 L. 

Ed. 2d at 688; Ellerth, supra, 524 U.S. at 764-65, 118 S. Ct. at 

2270, 141 L. Ed. 2d at 655.

Accordingly, we expressly adopt the Ellerth/Faragher

analysis for supervisor sexual harassment cases in which a 

hostile work environment is claimed pursuant to the LAD, and no 

tangible employment action is taken. See Entrot v. BASF Corp., 

359 N.J. Super. 162, 187 (App. Div. 2003) (anticipating adoption 

of Ellerth/Faragher affirmative defense, and holding that “there 

is no barrier to the application of a Title VII defense [based 

on Ellerth/Faragher] to an LAD action”).8

 

8 The Appellate Division opinion on which our dissenting 

colleagues rely, Schmidt v. Smith, 294 N.J. Super. 569 (App. 

Div. 1996), aff’d, 155 N.J. 44 (1998), is not to the contrary. 

Post at ___ (slip op. at 5). In its brief review of claims of 

direct liability under Restatement § 219(2)(b) and vicarious 

liability under Restatement § 219(2)(d), the Appellate Division 

simply summarized portions of this Court’s discussion of these 

claims in Lehmann. See Schmidt, supra, 294 N.J. Super. at 578-

79. Contrary to the suggestion of the dissent, the Appellate 

Division neither stated nor implied that Lehmann precludes the 

assertion of an affirmative defense to a claim of vicarious 

liability based on Restatement § 219(2)(d). Ibid. Although 

the dissent contends that the Appellate Division “pointed out 

that unlike supervisory liability,” negligence claims permit an 

employer to present evidence of its due care giving rise to a 

defense, post at ___ (slip op. at 5), such a distinction is 

nowhere to be found in Schmidt. See Schmidt, supra, 294 N.J. 

Super. at 578-79.
41

In a hostile work environment sexual harassment case under 

the LAD in which the plaintiff alleges employer vicarious 

liability under Restatement § 219(2)(d), the plaintiff has the 

initial burden of presenting a prima facie hostile work 

environment claim. If no tangible employment action has been 

taken against the plaintiff, the defendant employer may assert 

the two-pronged affirmative defense of Ellerth and Faragher. To 

establish that defense, the defendant employer has the burden to 

prove, by a preponderance of the evidence, both prongs of the 

affirmative defense: first, that the employer exercised 

reasonable care to prevent and to correct promptly sexually 

harassing behavior; and second, that the plaintiff employee 

unreasonably failed to take advantage of preventive or 

corrective opportunities provided by the employer or to 

otherwise avoid harm. See Faragher, supra, 524 U.S. at 807, 118 

S. Ct. at 2293, 141 L. Ed. 2d at 689; Ellerth, supra, 524 U.S.

at 746, 118 S. Ct. at 2262, 141 L. Ed. 2d at 644. The employee 

may rebut the elements of the affirmative defense.

Thus, in further proceedings in this case, including any 

summary judgment proceedings that may follow remand, the State 

may avoid vicarious liability under Restatement § 219(2)(d) by 

demonstrating by a preponderance of the evidence that the DOC 

exercised reasonable care to prevent and correct promptly any 

sexually harassing behavior, and that Aguas unreasonably failed 
42

to take advantage of any preventive or corrective opportunities 

provided by the DOC, or to avoid harm otherwise. See Faragher, 

supra, 524 U.S. at 807, 118 S. Ct. at 2292, 141 L. Ed. 2d at

688; Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L. 

Ed. 2d at 655.

V.

The second issue raised in this case, the definition of a 

supervisor for purposes of claims based on sexual harassment 

giving rise to a hostile work environment, is a pivotal factor 

in the application of the agency principles set forth in 

Restatement § 219(2)(d). Liability under Restatement § 

219(2)(d) predicated on a supervisor’s misconduct raises a 

critical question of fact -- the parameters of the authority 

conferred on the alleged harasser and whether he or she is 

properly considered a supervisor. See Restatement § 219(2)(d). 

The Court in Lehmann did not expressly define “supervisor” 

for purposes of deciding vicarious liability sexual harassment 

cases under agency law. It alluded, however, to the “power 

delegated to [a supervisor] to control the day-to-day working 

environment.” Lehmann, supra, 132 N.J. at 620. Further, in the 

context of its discussion of punitive damages, the Court 

distinguished between a “supervisor” and the employer’s “upper 

management.” Id. at 622-23. The Court thus suggested that its 

concept of a supervisor, for purposes of the agency analysis 
43

that it proposed, included a broader range of managers than the 

senior executives who set policy for an employer. Id. at 623.

Similarly, in Cavuoti, supra, in which the definition of 

“upper management” for purposes of a claim for punitive damages 

was the primary issue, the Court cited federal authority for the 

principle that it is an alleged harasser’s functional authority 

in the workplace, not simply his or her power to hire and 

terminate a subordinate, that defines his or her status as a 

“supervisor.” 161 N.J. at 124-25.

In its role as the agency charged with the enforcement of 

Title VII, the EEOC provided guidance to employers regarding the 

meaning of the term “supervisor” for purposes of sexual 

harassment cases. U.S. Equal Emp’t Opportunity Comm’n, No. 

915.002 Enforcement Guidance on Vicarious Liability for Unlawful 

Harassment by Supervisors 3-5 (June 18, 1999) [hereinafter “EEOC 

Guidance”], available at

http://www.eeoc.gov/policy/docs/harassment.pdf. Applying the 

Ellerth/Faragher analysis, the EEOC cautioned that the 

determination of whether an alleged harasser is a “supervisor” 

turns on job function, not job title, that it “must be based on

the specific facts,” and that a supervisor’s authority “must be 

of sufficient magnitude so as to assist the harasser explicitly 

or implicitly in carrying out the harassment.” Id. at 4.
44

The first of the two definitions of “supervisor” 

promulgated by the EEOC focuses on the supervisor’s capacity to 

undertake the adverse employment decisions that, if made, bar an 

employer from invoking the Ellerth/Faragher affirmative defense. 

Under that definition, “[a]n individual qualifies as an 

employee’s ‘supervisor’ if he or she is authorized to undertake 

tangible employment decisions affecting the employee.” Ibid.

The EEOC Guidance defines “tangible employment decisions” to 

include, but not to be limited to, “hiring and firing, promotion 

and failure to promote, demotion, undesirable reassignment, a 

decision causing a significant change in benefits, compensation 

decisions and work assignment,” and “suspension” or other 

“progressive discipline.” Id. at 4, 6-7 n.31. The EEOC

explained:

An individual whose job responsibilities 

include the authority to recommend tangible 

job decisions affecting an employee qualifies 

as his or her supervisor even if the 

individual does not have the final say. As 

the Supreme Court recognized in Ellerth, a 

tangible employment decision “may be subject 

to review by higher level supervisors.” As 

long as the individual’s recommendation is 

given substantial weight by the final decision 

maker(s), that individual meets the definition 

of supervisor.

[Id. at 4 (footnote omitted).]

The EEOC’s second definition of “supervisor” reflects the 

language of the second clause in Restatement § 219(2)(d), which 
45

requires that the sexual harasser be “aided in accomplishing the 

tort by the existence of the agency relation.” Restatement §

219(2)(d). Citing the lifeguard supervisor setting of Faragher,

the EEOC deems “[a]n individual who is authorized to direct 

another employee’s day-to-day work activities” as a supervisor, 

“even if that individual does not have the authority to 

undertake or recommend tangible job decisions.” EEOC Guidance, 

supra, at 4. The EEOC stated:

An individual who is temporarily authorized to 

direct another employee’s daily work 

activities qualifies as his or her 

“supervisor” during that time period. 

Accordingly, the employer would be subject to 

vicarious liability if that individual commits 

unlawful harassment of a subordinate while 

serving as his or her supervisor. 

On the other hand, someone who merely relays 

other officials’ instructions regarding work 

assignments and reports back to those 

officials does not have true supervisory 

authority. Furthermore, someone who directs 

only a limited number of tasks or assignments 

would not qualify as a “supervisor.” For 

example, an individual whose delegated 

authority is confined to coordinating a work 

project of limited scope is not a supervisor.

[Id. at 5.]

In Vance v. Ball State University, U.S. , , 133 S.

Ct. 2434, 2443, 186 L. Ed. 2d 565 (2013), a closely divided

United States Supreme Court adopted a substantially narrower 

definition of “supervisor” than that of the EEOC for purposes of 

employer vicarious liability in supervisor sexual harassment 
46

cases. There, the majority construed Ellerth and Faragher to 

envision not two definitions of the term “supervisor,” but “a 

unitary category of supervisors, i.e., those employees with the 

authority to make tangible employment decisions.” Ibid. It 

held:

[A]n employer may be vicariously liable for an 

employee’s unlawful harassment only when the 

employer has empowered that employee to take 

tangible employment actions against the 

victim, i.e., to effect a “significant change 

in employment status, such as hiring, firing, 

failing to promote, reassignment with 

significantly different responsibilities, or 

a decision causing a significant change in 

benefits.”

[Ibid. (quoting Ellerth, supra, 524 U.S. at 

761, 118 S. Ct. at 2257, 141 L. Ed. 2d at 

633).]

We decline to adopt the restrictive definition of 

“supervisor” prescribed by the Supreme Court majority in Vance.

In light of our fact-specific approach to sexual harassment 

cases, we respectfully disagree with the Supreme Court’s 

rejection of the EEOC’s definition of supervisor on the grounds 

that it relies “on a highly case-specific evaluation of numerous 

factors.” Ibid. We agree with the EEOC that the term 

“supervisor,” defined more expansively to include not only 

employees granted the authority to make tangible employment 

decisions, but also those placed in charge of the complainant’s 
47

daily work activities, accurately reflects the two different 

settings envisioned by Restatement § 219(2)(d). 

Moreover, this broader definition comports with this 

Court’s holding in Lehmann, in which the Court recognized the 

importance, in Restatement § 219(2)(d) sexual harassment cases, 

of a supervisor’s authority to control the day-to-day working 

environment. Lehmann, supra, 132 N.J. at 132. It is also 

consistent with the holding in Cavuoti, in which the Court 

rejected the notion that only the power to hire and terminate a 

subordinate distinguishes a supervisor from a co-employee.

Cavuoti, supra, 161 N.J. at 124-25. The EEOC definition takes 

into account the broad range of employer structures and factual 

settings in which sexual harassment occurs.

Most importantly, the more expansive definition of 

“supervisor” furthers the paramount goal of the LAD: the 

eradication of sexual harassment in the workplace. It prompts 

employers to focus attention not only on an elite group of 

decision-makers at the pinnacle of the organization, but on all

employees granted the authority to direct the day-to-day 

responsibilities of subordinates, and to ensure that those 

employees are carefully selected and thoroughly trained.

In any additional proceedings in this case following 

remand, the question of whether McClish or Hill served as 

Aguas’s “supervisor” should be determined in accordance with the 
48

two definitions set forth by the EEOC. Under that standard, the 

allegedly harassing employee should be considered a supervisor 

for purposes of Aguas’s hostile work environment claim if 

either: (1) he was authorized to undertake tangible employment 

decisions affecting Aguas; or (2) he was authorized by the DOC 

to direct her day-to-day work activities at Edna Mahan.

VI.

Finally, we consider Aguas’s claim for punitive damages. 

The trial court premised its dismissal of Aguas’s punitive 

damages claim on its determination that the record supported no 

claim for compensatory damages in this case and accordingly did 

not undertake a detailed analysis of the punitive damages claim. 

We briefly review the standard that governs such a claim.

A plaintiff asserting a punitive damages claim in a LAD 

case against a public entity such as the DOC must meet a high 

standard. A public sector employer “whose egregious conduct 

violates the LAD may be held ‘liable for punitive damages . . . 

only in the event of actual participation by upper management or 

willful indifference.’” Lockley v. Dep’t of Corr., 177 N.J.

413, 424 (2003) (quoting Cavuoti, supra, 161 N.J. at 117). The 

plaintiff must prove egregious conduct on the part of the 

defendant by clear and convincing evidence. Id. at 432 (citing 

L. 1995, c. 142, § 11); see also Lehmann, supra, 132 N.J. at

624-25 (quoting Leimgruber v. Claridge Assocs., 73 N.J. 450, 454 
49

(1977)). For such damages, “a higher level of culpability than 

mere negligence” is required. Lehmann, supra, 132 N.J. at 626. 

For purposes of this analysis, defining the employer’s 

“upper management” is a fact-sensitive inquiry that does not 

“depend[] on labels or titles but on whether an employee 

possesses ‘significant power, discretion and influence.’” 

Lockley, supra, 177 N.J. at 424 (quoting Cavuoti, supra, 161 

N.J. at 123). This Court has explained that 

upper management would consist of those 

responsible to formulate the organization’s 

anti-discrimination policies, provide 

compliance programs and insist on performance 

(its governing body, its executive officers), 

and those to whom the organization has 

delegated the responsibility to execute its 

policies in the workplace, who set the 

atmosphere or control the day-to-day 

operations of the unit (such as heads of 

departments, regional managers, or compliance 

officers). For an employee on the second tier 

of management to be considered a member of 

“upper management,” the employee should have 

either (1) broad supervisory powers over the 

involved employees, including the power to 

hire, fire, promote, and discipline, or (2)

the delegated responsibility to execute the 

employer’s policies to ensure a safe, 

productive and discrimination-free workplace. 

Obviously such instructions should be tailored 

to the facts of the case and might be 

accompanied by special interrogatories when 

several officers are presented as members of 

“upper management.”

[Cavuoti, supra, 161 N.J. at 128-29.]

Thus, this fact-sensitive inquiry requires consideration of the 

following: (1) the employee’s position in the employer’s 
50

hierarchy; (2) the employee’s function and responsibilities; and 

(3) the amount of discretion the employee exercises. Lockley, 

supra, 177 N.J. at 424.

Although claims brought pursuant to the LAD are excluded 

from the statutory cap set by the Punitive Damages Act, N.J.S.A.

2A:15-5.9 to -5.17 (PDA), in N.J.S.A. 2A:15-5.14, the PDA’s 

“general requirements for procedural and substantive fairness 

are mandated.” Baker v. Nat’l State Bank, 161 N.J. 220, 229 

(1999). Pursuant to N.J.S.A. 2A:15-5.12(c), if the trier of 

fact determines that an award is appropriate in an LAD case 

against a public sector employer, it sets the amount of that 

award by considering all relevant evidence relating to the 

factors set forth in N.J.S.A. 2A:15-5.12(b), “the profitability 

of the misconduct to the defendant” and when the misconduct was 

terminated.9

Consequently, if the trial court is called upon to 

determine Aguas’s punitive damages claim on remand, it should 

assess whether Aguas has shown by clear and convincing evidence 

that the DOC committed “egregious conduct,” and if so, whether 

she has presented clear and convincing evidence that “upper 

 

9 A fourth factor identified in N.J.S.A. 2A:15-5.12(c), the 

defendant’s financial condition, is generally not considered 

when the defendant is a public entity because it “does not 

further the goal of deterrence as it does in the private 

sector.” Lockley, supra, 177 N.J. at 430-31. 
51

management” either participated directly in sexual harassment, 

or showed “willful indifference.” The court should also assess 

Aguas’s claims in accordance with the PDA and this Court’s 

holdings in Cavuoti and Lockley. 

VII.

The judgment of the Appellate Division is reversed, and the 

matter is remanded for further proceedings in accordance with 

this opinion.

JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON; and JUDGE 

CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. 

JUSTICE ALBIN filed a separate, dissenting opinion in which 

CHIEF JUSTICE RABNER joins.
1

SUPREME COURT OF NEW JERSEY

A-35 September Term 2013

072467

ILDA AGUAS,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

Defendant-Respondent.

JUSTICE ALBIN, dissenting.

The majority opinion turns back the clock for employees 

victimized by sexual harassment in the workplace and gives 

greater protection to supervisors who abuse their authority to 

create a hostile work environment. Today’s decision tears down 

the central pillar of our landmark decision in Lehmann v. Toys 

‘R’ Us, 132 N.J. 587 (1993), which announced that an employer 

would be vicariously liable for sexual harassment committed by 

one of its supervisors. Lehmann allowed no quarter for 

supervisory sexual harassment and provided for no affirmative 

defense for the employer. We said so in clear, unmistakable 

terms, leaving no doubt that under New Jersey’s Law Against 

Discrimination (LAD), N.J.S.A. 10:5-1 to -49, this State’s

workers had safeguards not present under federal law. 
2

The Appellate Division, the United States District Court of 

New Jersey, and the New Jersey Supreme Court Committee on Civil 

Jury Charges all recognized that under Lehmann, when the 

supervisor is the sexual harasser, the employer has no 

affirmative defense and cannot hide behind a paper antidiscrimination policy. Civil Jury Charge 2.25 reaffirmed in 

2013 what we said twenty years earlier in Lehmann -- that an 

employer is vicariously liable if a supervisor creates a hostile 

work environment through sexual harassment. Model Jury Charge 

(Civil) 2.25 “Hostile Work Environment Claims Under the New 

Jersey Law Against Discrimination (Sexual and Other Harassment)” 

(February 2013). Trial courts have been guided by that charge 

for eighteen years. The majority now says it was all a mistake. 

I cannot pretend that the majority’s retreat from Lehmann

will not have real-life negative consequences for the targets of 

workplace discrimination. Going forward, sexually harassed 

employees -- mostly women -- will be less likely to find relief 

in our courts, and therefore will be less likely to take their 

grievances there.1 And employers will have less incentive to use 

greater care in selecting supervisors who will enforce rather 

than violate anti-discrimination policies. This is not a sky-

 

1 Lehmann’s basic assumption is that women are the most frequent 

victims of sexual harassment in the workplace. See Lehmann, 

supra, 132 N.J. at 615. 
3

is-falling prediction but a stark reality for anyone who 

understands what our jurisprudence was and what it has now 

become. 

The Law Against Discrimination is one of New Jersey’s most 

progressive legislative schemes. Under the LAD, vicarious 

supervisory liability was a critical remedy both in making 

discriminated employees whole and in deterring workplace 

harassment. Because the majority has abandoned that remedy

without any compensating benefit, I respectfully dissent.

I.

In our landmark decision in Lehmann, supra, 132 N.J. at 

615-25, we set forth the different pathways for employer 

liability under our LAD when an employee is subjected to a 

hostile work environment through sexual harassment. In cases 

involving a hostile work environment persisting through an

employer’s alleged negligence, we allowed for an employer to 

show that it exercised due care by effectuating an antidiscrimination policy accessible to employees. Id. at 621-22

(relying on Restatement (Second) of Agency § 219(2)(b) (1958)). 

However, we took a different approach when the supervisor was 

the perpetrator of sexual harassment. In that circumstance, we 

clearly stated that an employer would be vicariously liable for 

the supervisor’s sexual harassment of a subordinate because the 

employer delegated to the supervisor the authority to control 
4

the workplace. Id. at 620 (relying on Restatement (Second) of 

Agency, supra, § 219(2)(d)). The employer could not seek cover

behind an ineffective anti-discrimination policy that did not 

deter a supervisor from misusing the power delegated to him. 

In Lehmann, we stated that whether an employer is liable 

for the hostile work environment created by a supervisor 

controlling the day-to-day activities of an employee depends on 

how a factfinder decides four questions: 

1. Did the employer delegate the authority to 

the supervisor to control the situation of 

which the plaintiff complains?

2. Did the supervisor exercise that authority?

3. Did the exercise of authority result in a 

violation of the LAD?

4. Did the authority delegated by the employer 

to the supervisor aid the supervisor in 

injuring the plaintiff? 

[Ibid.]

We further stated that “[w]hen the answer to each of those 

questions is yes, then the employer is vicariously liable for 

the supervisor’s harassment under § 219(2)(d).” Ibid. In 

supervisory liability cases, Lehmann posed no fifth question 

asking whether an employer should be excused because of a 

purportedly effective anti-discrimination policy available to 

its harassed employees.
5

Lehmann’s simple formulation of employer supervisory 

liability was understood by our courts and by various Supreme 

Court Committees given the task of preparing a jury charge 

consistent with our holding in Lehmann. 

Writing for the Appellate Division in Schmidt v. Smith, 294 

N.J. Super. 569, 578 (App. Div. 1996), aff’d, 155 N.J. 44 

(1998), Judge Keefe noted that the “Lehmann Court provided a 

check list for the determination of whether a supervisor who 

creates a hostile work environment was aided in accomplishing 

that tort by the power delegated to him or her to control the 

day-to-day working environment.” Judge Keefe quoted the above

four-question test in Lehmann and stated: “When the answer to 

each of these questions is yes, then the employer is vicariously 

liable for the supervisor’s harassment under § 219(2)(d).”

Ibid. (citing Lehmann, supra, 132 N.J. at 619). Judge Keefe 

pointed out that unlike supervisory liability, the standard 

governing sexual harassment negligence claims allows an employer 

to present evidence of due care, such as “some effective 

preventative mechanisms such as anti-harassment policies, formal 

and informal complaint structures and monitoring mechanisms.” 

Id. at 579 (citing Lehmann, supra, 132 N.J. at 621). 

The Supreme Court Model Civil Jury Charge Committee, 

comprised of preeminent judges and lawyers, has formulated and 

revised a supervisory-liability charge four times since 1997, 
6

each time asserting that an employer has no defense to a 

supervisor’s sexual harassment if the factfinder answers the 

four Lehmann questions in the affirmative. As recently as 

February 2013, the Model Civil Jury Charge Committee issued 

instructions on employer liability when a supervisor or nonsupervisor creates the hostile work environment.2 Civil Jury 

Charge 2.25 provides that an employer is liable “if it delegated 

to [the harassing supervisor] the authority to control the 

working environment and [the harassing supervisor] abused that 

authority to create a hostile work environment.” Model Jury 

Charge (Civil) 2.25(4)(b). The jury is (and has been) provided 

with the following instructions:

To prove that defendant [employer’s name] 

is liable to plaintiff based on its delegation 

of authority to [name(s) of alleged harassing 

supervisor(s)], plaintiff must prove each of 

the following elements by a preponderance of 

the evidence:

 

2 Model Jury Charge (Civil) 8.49, which instructs the jury on 

supervisory sexual harassment, was approved by the Supreme Court 

Model Civil Jury Charge Committee in October 1997. Model Jury 

Charge (Civil) 8.49 “Supervisory Sexual Harassment” (October 

1997). Model Jury Charge (Civil) 2.25, which instructs the jury 

on hostile work environment claims under the LAD, was approved 

by the Supreme Court Model Civil Jury Charge Committee in 

November 1999. Model Jury Charge (Civil) 2.25. Then, in 2000,

the Committee revised the charge, based on Lehmann. Notices to 

the Bar, Updates to Model Civil Jury Charges, 159 N.J.L.J. 258, 

258 (Jan. 17, 2000). The charge was revised again, in February

2013, to “address an employer’s liability under the LAD for 

supervisory acts of sexual harassment.” Notices to the Bar, 

Model Civil Jury Charges Updates, 213 N.J.L.J. 554, 554 (Aug. 

12, 2013).
7

(1) That defendant [employer’s name] 

delegated authority to [name(s) of 

alleged harassing supervisor(s)] to 

control the situation of which plaintiff 

complains; and

(2) [name(s) of alleged harassing 

supervisor(s)] exercised that authority; 

and

(3) [name(s) of alleged harassing 

supervisor(s)] exercise of authority 

resulted in unlawful harassment; and 

(4) the authority delegated by 

defendant [employer name] to [name(s) of 

alleged harassing supervisor(s)] aided 

[name(s) of alleged harassing 

supervisor(s)] in harassing plaintiff.

 

If you find that the plaintiff has proved 

each of these elements, then defendant 

[employer’s name] is liable for the alleged 

unlawful harassment. If any one of these 

elements is not proved, then defendant 

[employer’s name] cannot be held liable based 

on its delegation of authority.

[Ibid.]

 

That charge has been given to juries for eighteen years. 

In Gaines v. Bellino, 173 N.J. 301, 313 (2002), we reaffirmed 

the basic formula found in this jury charge derived from 

Lehmann, never hinting that an affirmative defense applied to 

supervisory liability under the Restatement § 219(2)(d)

approach. We did so even though Faragher v. City of Boca Raton, 

524 U.S. 775, 807, 118 S. Ct. 2275, 2293, 141 L. Ed. 2d 662, 689

(1998) and Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65,

118 S. Ct. 2257, 2270, 141 L. Ed. 2d 633, 655 (1998), which 
8

provide an affirmative defense to supervisory liability, were 

both on the books. In Gaines, supra, we only stated that when 

an employee alleges employer negligence in causing a hostile 

work environment, under Restatement § 219(2)(b), the employer 

can assert the affirmative defense that it had an antidiscrimination policy in place. 173 N.J. at 313-14. 

Moreover, that Cavuoti v. New Jersey Transit Corp., 161 

N.J. 107, 120-21 (1999), permits an affirmative defense to a 

punitive-damage claim against a company in a LAD case, in no way 

contradicts Lehmann’s no-affirmative defense to a compensatorydamage claim involving supervisory liability, as the majority 

suggests. Nowhere in Cavuoti does the Court contravene the 

supervisory-liability test for compensatory damages crafted in 

Lehmann.

Last, if Cavuoti and Gaines stood for the proposition that 

an affirmative defense applies to vicarious supervisory 

liability -- as the majority asserts -- then it stands to reason 

that this Court in 1999 and 2002 would have directed the Model 

Civil Jury Charge Committee to amend the Model Charge to conform 

to that view. But that never happened. Only now does the 

majority give the directive to the Committee to amend the Charge 

to include an affirmative defense. 

 II.
9

In Lehmann, supra, we understood that we were pursuing our 

own path, a different path in construing the LAD as providing 

greater protection against workplace discrimination than that 

afforded by federal courts construing Title VII. 132 N.J. at 

600-01, 603, 618-20. Indeed, we eschewed the standard set forth 

by the United States Court of Appeals for the Third Circuit for 

hostile work environment sexual harassment. Id. at 603. We 

stated:

[W]e announce a new test in the hope of 

creating a standard that both employees and 

employers will be able to understand and one 

that employers can realistically enforce. We 

cannot overstate the importance we place on a 

test that allows employees to know their 

rights in a given set of circumstances and 

that allows employers to set policies and 

procedures that comply with that test.

[Ibid.]

Importantly, in Lehmann, supra, we declined to follow the 

United States Supreme Court majority’s decision in Meritor 

Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. 

Ed. 2d 49 (1986). 132 N.J. at 618-21. Meritor, supra, refused 

to accept the notion that “an employer is strictly liable for a 

hostile environment created by a supervisor’s sexual advances, 

even though the employer neither knew nor reasonably could have 

known of the alleged misconduct.” 477 U.S. at 69-70, 106 S. Ct.

at 2407, 91 L. Ed. 2d at 61. Rather than follow Meritor, in 

Lehmann, supra, we cited approvingly Justice Marshall’s 
10

concurrence (joined by Justices Brennan, Blackmun, and Stevens)

on supervisory liability:

[A] supervisor’s responsibilities do not begin

and end with the power to hire, fire, and

discipline employees, or with the power to

recommend such actions. Rather, a supervisor

is charged with the day-to-day supervision of

the work environment and with ensuring a safe,

productive workplace. There is no reason why

abuse of the latter authority should have

different consequences than abuse of the

former. In both cases it is the authority

vested in the supervisor by the employer that

enables him to commit the wrong: it is

precisely because the supervisor is understood

to be clothed with the employer’s authority

that he is able to impose unwelcome sexual

conduct on subordinates.

[132 N.J. at 618-19 (quoting Meritor, supra, 

477 U.S. at 76-77, 106 S. Ct. at 2410, 91 L. 

Ed. 2d at 65-66 (Marshall, J., concurring)).]

The United States Supreme Court in Faragher, supra, 

declared that it was bound to follow the majority decision in 

Meritor. 524 U.S. at 792, 118 S. Ct. at 2286, 141 L. Ed. 2d at 

679. However, as pointed out, in Lehmann, supra, we did not 

adopt the reasoning in Meritor. 132 N.J. at 618-21. Therefore, 

we are not bound to follow Faragher in lock-step. 

Faragher, supra, held that an employer is subject to strict 

“vicarious liability to a victimized employee for an actionable 

hostile environment created by a supervisor with immediate (or 

successively higher) authority over the employee” when a 

tangible employment action is taken, “such as discharge, 
11

demotion, or undesirable reassignment.” 524 U.S. at 807-08, 118 

S. Ct. at 2293, 141 L. Ed. 2d at 689. On the other hand, 

“[w]hen no tangible employment action is taken” -- for example, 

when the harassing conduct causes an employee to suffer a 

nervous breakdown or a severe psychiatric disorder -- Faragher

allows an affirmative defense. See id. at 807, 118 S. Ct. at 

2293, 141 L. Ed. 2d at 689. The affirmative defense comes into 

play if the employer can show “(a) that the employer exercised 

reasonable care to prevent and correct promptly any sexually 

harassing behavior, and (b) that the plaintiff employee 

unreasonably failed to take advantage of any preventive or 

corrective opportunities provided by the employer or to avoid 

harm otherwise.” Ibid. The Court came to the same holding in 

Ellerth, supra, 524 U.S. at 764-65, 118 S. Ct. at 2270, 141 L. 

Ed. 2d at 655, which was decided on the same day as Faragher. 

Until today, the Ellerth/Faragher affirmative defense standard 

was foreign to our LAD jurisprudence.

Lehmann makes no such distinction between tangible 

employment actions and sexual harassment that may cause physical 

or psychological harm to the employee. Under Lehmann, supra, so 

long as the “employer grants the supervisor the authority to 

control the working environment and the supervisor abuses that 

authority to create a hostile work environment,” the employer is 

liable for compensatory damages, whatever they may be. 132 N.J.
12

at 624. Thus, a supervisor who sexually harasses and 

psychologically breaks an employee will be liable for 

compensatory damages. Ellerth/Faragher cannot be squared with 

Lehmann.

The United States District Court of New Jersey knew that 

our approach in Lehmann was incompatible with Ellerth/Faragher. 

In Newsome v. Administrative Office of the Courts, 103 F. Supp.

2d 807 (D.N.J. 2000), the plaintiff asserted violations of Title 

VII and the LAD, alleging that she was sexually harassed by her 

supervisor at the Administrative Office of the Courts (AOC). 

Even in the wake of Ellerth/Faragher, Judge Greenaway stated 

that “[a]lthough the New Jersey Supreme Court frequently looks 

to Title VII jurisprudence in interpreting the LAD, it has 

adopted a slightly broader test than that of the Third Circuit 

for hostile environment harassment.” Id. at 817 (citation 

omitted). Like Judge Keefe and the Supreme Court Model Civil 

Jury Charge Committee, Judge Greenaway read Lehmann as not 

providing an affirmative defense to supervisory liability for 

sexual harassment. Id. at 822. In a case in which an employer 

delegates to a supervisor the power to control the work 

environment, thus facilitating the harassing conduct, Judge 

Greenaway held that, under the LAD, “[t]he reasonableness of the 

AOC’s actions in implementing anti-harassment policies is no 

defense to harassment committed because of the agency 
13

relationship.” Ibid. Judge Greenaway stated that if a jury 

answered affirmatively that the supervisor’s actions “were 

sufficiently severe or pervasive to create a hostile work 

environment” and that the supervisor “was able to commit those 

acts because of the authority delegated him by the AOC,” then 

“the AOC will be vicariously liable, irrespective of its antiharassment policies.” Ibid. 

Judge Greenaway understood Lehmann’s distinction between 

the LAD and Title VII’s approach to supervisory liability. It

is that important distinction that the majority paves over 

today.

III.

Today’s decision is at complete odds with the widely held 

view that the LAD, under Lehmann, provided greater protection 

than federal law in hostile work environment cases.3 “The LAD is 

 

3 See Elliot M. Baumgart & David H. Ben-Asher, If You Don’t Have 

a Grievance Procedure, Get One; U.S. Supreme Court Lays Down the 

Rules for Avoiding Employer Liability for Sexual Harassment by 

Supervisors, 153 N.J.L.J. 492, 496 (Aug. 3, 1998) (“The 

discussion in Lehmann of an employer’s effective complaint 

mechanisms took place only in the context of the negligence 

ground for vicarious liability, in contrast to Faragher and 

[Ellerth] -- in which the existence of a complaint mechanism is 

clearly available as a defense to all the grounds for vicarious 

liability.”); Lisa Manshel, Employer Liability for Supervisors’ 

Sexual Harassment; Why Faragher and Ellerth Affirmative Defenses 

Shouldn’t Apply Under the LAD, 160 N.J.L.J. 609, 609 (May 15, 

2000) (“The proponents of [Ellerth/Faragher] seek to use this 

affirmative defense to escape liability under the less forgiving 

test set forth in Lehmann.”); id. at 615 (“In actuality, the new 

affirmative defense is nothing more than a policy decision to 
14

remedial social legislation whose overarching goal is to 

eradicate the ‘cancer of discrimination.’” Nini v. Mercer Cnty.

Cmty. Coll., 202 N.J. 98, 108-09 (2010). Before today, we 

heralded this state’s progressive anti-discrimination laws and 

jurisprudence. For example, in Alexander v. Seton Hall 

University, 204 N.J. 219, 222, 234-35 (2010), we refused to 

follow the United States Supreme Court’s crabbed “framework for 

analyzing accrual and timeliness in Title VII wage 

discrimination claims” in Ledbetter v. Goodyear Tire & Rubber 

Co., 550 U.S. 618, 127 S. Ct. 2162, 167 L. Ed. 2d 982 (2007), 

because that framework disadvantaged employees who suffered 

discrimination. We rejected “the sea change that would be 

effected were we to adopt the Ledbetter majority approach to 

wage discrimination claims under our LAD” in light of our 

settled case law. Alexander, supra, 204 N.J. at 234. We 

therefore allowed for a more expansive statute of limitations

under the LAD for the filing of wage discrimination claims. 

Ibid. Yet, the majority in this case invites a “sea change”

that will disadvantage sexually harassed employees in the 

workplace. 

 

shield employers from liability despite the fact that their 

policies are not effective. This federal policy contradicts the 

intent of the New Jersey Legislature as understood in 

Lehmann.”). 
15

If the United States Supreme Court’s interpretation of 

Title VII was not the gold standard in Alexander, then why here? 

First, the Ellerth/Faragher standard is not in keeping with our 

liberal construction of our LAD. See Nini, supra, 202 N.J. at 

108-09 (noting that LAD “should be liberally construed” because 

it “is remedial social legislation”). Second, the 

Ellerth/Faragher standard has received substantial criticism. 

One commentator has stated the Ellerth/Faragher standard creates 

a “risk that internal programs will be merely ‘symbolic 

responses -- responses designed to create a visible commitment 

to law, which may, but do not necessarily, reduce employment 

discrimination.’” Melissa Hart, The Possibility of Avoiding 

Discrimination: Considering Compliance and Liability, 39 Conn.

L. Rev. 1623, 1646 (2007) (quoting Lauren B. Edelman, Legal 

Ambiguity and Symbolic Structures: Organizational Mediation of 

Civil Rights Law, 97 Am. J. Soc. 1531, 1542 (1992)). Another 

commentator has expressed concern that “firms may utilize 

compliance systems simply as window-dressing to reduce the 

probability of legal liability without addressing the underlying 

behavior.” Timothy P. Glynn, Taking Self-Regulation Seriously: 

High-Ranking Officer Sanctions for Work-Law Violations, 32 

Berkeley J. Emp. & Lab. L. 279, 312 (2011); see also Anne 

Lawton, Operating in an Empirical Vacuum: The Ellerth and 

Faragher Affirmative Defense, 13 Colum. J. Gender & L. 197, 199 
16

(2004) (noting that United States Supreme Court’s approach 

“paved the way for the lower federal courts to interpret the 

affirmative defense in ways that further undermine, rather than 

facilitate, the goal of deterring sexual harassment in the 

workplace”); John H. Marks, Smoke, Mirrors, and the 

Disappearance of “Vicarious” Liability: The Emergence of a 

Dubious Summary-Judgment Safe Harbor for Employers Whose 

Supervisory Personnel Commit Hostile Environment Workplace 

Harassment, 38 Hous. L. Rev. 1401, 1405 (2002) (stating that 

post-Ellerth courts are “manufacturing a dubious summary 

judgment safe harbor for employers”).

The Ellerth/Faragher standard, moreover, is not the optimal 

method for discouraging sexual harassment in the workplace. 

See, e.g., Susan Bisom-Rapp, Bulletproofing the Workplace: 

Symbol and Substance in Employment Discrimination Law Practice, 

26 Fla. St. U. L. Rev. 959, 972 (1999) (“[T]he implementation of 

symbolic policies and procedures in no way guarantees 

substantive change for members of the groups that EEO law is 

designed to protect. In fact, symbolic policies and procedures 

may provide unjustified optimism that an organization is 

governed fairly.”); Joanna L. Grossman, The Culture of 

Compliance: The Final Triumph of Form over Substance in Sexual 

Harassment Law, 26 Harv. Women’s L.J. 3, 71 (2003) (“Research 

suggests that the affirmative defense rewards compliance without 
17

ensuring success.”); Kimberly D. Krawiec, Organizational 

Misconduct: Beyond the Principal-Agent Model, 32 Fla. St. U. L. 

Rev. 571, 574 (2005) (“[S]ome organizations may employ internal 

compliance structures primarily as a window-dressing mechanism 

that provides both market legitimacy and reduced organizational 

liability for agent misconduct.”); Lawton, supra, 13 Colum. J. 

Gender & L. at 198 (expressing concern that courts should not 

“reward employers for ‘file cabinet compliance.’”).

Clearly, Ellerth/Faragher is not offering a better way than 

Lehmann for the victims of hostile work harassment, whether

those victims are targeted because of their gender, sexual 

orientation, race, religion, or nationality. If our civil jury 

charge on supervisory liability was so wrong because it gave 

victims of discrimination an unfair litigation advantage, one 

must wonder why it took our Court eighteen years to say so. 

Moreover, had the Legislature wanted to include an affirmative 

defense to supervisory liability in the wake of 

Ellerth/Faragher, it could have amended the LAD. But it did 

not. 

In short, neither precedent, nor experience, nor logic 

requires us to adopt a standard that is inferior to our own 

standard in Lehmann for supervisory liability in LAD hostile 

work environment cases.

IV.
18

Here are Aguas’s assertions, which we must accept as true 

for summary-judgment purposes. The highest-ranking officer on 

the third shift at the Edna Mahan Correctional Facility 

repeatedly sexually harassed Corrections Officer Ilda Aguas. On 

one occasion, the shift commander solicited Aguas to go with him 

to a motel; on another, he sat on her lap and blew his whistle 

while grinding his pelvis into her in the presence of two of 

Aguas’s supervisors. 

In another incident, the shift commander pulled Aguas’s 

hands behind her back up to her shoulder blades, bent her over a 

table with his genital area touching her buttocks, stating “What 

are you going to do?” In yet another incident, the shift 

commander danced around Aguas and blew his whistle as though she 

were a stripper. Two superior officers were present but did not 

intercede. Other unwanted encounters included the shift 

commander massaging Aguas’s shoulders. 

Aguas reported those egregious episodes of sexual 

harassment to a supervising lieutenant numerous times, and his 

response was that she should handle the matter herself. The 

supervising lieutenant took the position that he was “not going 

to lose [his] job by getting involved in this.” If Aguas’s 

account is true, the State is liable under Lehmann’s 

supervisory-liability standard, regardless of whether Aguas made 
19

a formal complaint pursuant to the Department of Correction’s 

anti-discrimination policy. 

Based on Aguas’s account, one fair inference is that a 

climate of fear discouraged the reporting of sexual harassment 

against a high-ranking officer. Common sense tells us that when 

the supervisor is the sexual harasser and other superior 

officers look the other way, as alleged here, the antidiscrimination policy touted by the employer has failed. The 

additional hoops that the majority requires Aguas to jump 

through under the Ellerth/Faragher standard do not advance the 

goals of the LAD, which is to rid the workplace of 

discriminatory harassment. This case exemplifies, if the 

allegations are true, how supervisory harassment can beat down 

and belittle an employee, who may understandably believe that 

she has nowhere to turn but to the courts.

V.

In the end, this is a case about statutory interpretation, 

and our mission is to construe the LAD consistent with the 

Legislature’s salutary goal of eradicating sexual harassment in 

the workplace. By imposing vicarious liability on the employer 

for a supervisor’s sexual harassment, the Lehmann Court gave

effect to its understanding of the Legislature’s intent in 

passing the LAD. If the majority’s interpretation of the LAD is 
20

wrong, as I believe it is, the Legislature can still speak to 

the issue.

CHIEF JUSTICE RABNER joins in this opinion. 
SUPREME COURT OF NEW JERSEY

NO. A-35 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

ILDA AGUAS,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

Defendant-Respondent.

DECIDED February 11, 2015

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY Justice Albin

CHECKLIST REVERSE/

REMAND AFFIRM

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 5 2