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Filed March 18, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 96-5633, 96-5634, 96-5661, 96-5738

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, husband and wife,

v.

THE ATLANTIC CITY POLICE DEPARTMENT, a subdivision of the City of Atlantic City;

HENRY MADAMBA; NICHOLAS V. RIFICE; JOHN MOONEY; JOHN DOES 1 THROUGH 50 inclusive, fictitious name defendants, jointly, severally, and in the alternative

(Camden New Jersey District Civil No. 93-260)

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,

wife and husband

v.

THE ATLANTIC CITY POLICE DEPARTMENT, a subdivision of the City of Atlantic City;

HENRY MADAMBA; NICHOLAS V. RIFICE; JOHN MOONEY; JOHN DOES 1 THROUGH 50, inclusive, jointly, severally, and in the alternati ve

(Camden, New Jersey District Civil No. 94-1122)

Atlantic City Police Department, Appellant No. 96-5633

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, husband and wife,

v.THE ATLANTIC CITY POLICE DEPARTMENT,

a subdivision of the City of Atlantic City;

HENRY MADAMBA; NICHOLAS V. RIFICE; JOHN MOONEY; JOHN DOES 1 THROUGH 50, inclusive, fictitious name defendants, jointly, severally, and in the alternative

(Camden New Jersey District Civil No. 93-260)

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,

wife and husband

v.

THE ATLANTIC CITY POLICE DEPARTMENT, a subdivision of the City of Atlantic City;

HENRY MADAMBA; NICHOLAS V. RIFICE; JOHN MOONEY; JOHN DOES 1 THROUGH 50, inclusive, jointly, severally, and in the alternati ve

(Camden, New Jersey District Civil No. 94-1122)

Henry Madamba, Appellant No. 96-5634

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, husband and wife,

v.

THE ATLANTIC CITY POLICE DEPARTMENT, a subdivision of the City of Atlantic City;

HENRY MADAMBA; NICHOLAS V. RIFICE; JOHN MOONEY; JOHN DOES 1 THROUGH 50, inclusive, fictitious name defendants, jointly, severally, and in the alternative

(Camden New Jersey District Civil No. 93-260)

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,

wife and husband

v.

2THE ATLANTIC CITY POLICE DEPARTMENT,

a subdivision of the City of Atlantic City;

HENRY MADAMBA; NICHOLAS V. RIFICE; JOHN MOONEY; JOHN DOES 1 THROUGH 50, inclusive, jointly, severally, and in the alternati ve

(Camden New Jersey District Civil No. 94-1122)

Donna M. Hurley, and Patrick K. Hurley, Appellants No. 96-5661

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, husband and wife,

v.

THE ATLANTIC CITY POLICE DEPARTMENT, a subdivision of the City of Atlantic City;

HENRY MADAMBA; NICHOLAS V. RIFICE; JOHN MOONEY; JOHN DOES 1 THROUGH 50, inclusive, fictitious name defendants, jointly, severally, and in the alternative

(Camden New Jersey District Civil No. 93-260)

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,

wife and husband

v.

THE ATLANTIC CITY POLICE DEPARTMENT, a subdivision of the City of Atlantic City;

HENRY MADAMBA; NICHOLAS V. RIFICE; JOHN MOONEY; JOHN DOES 1 THROUGH 50, inclusive, jointly, severally, and in the alternati ve

(Camden, New Jersey District Civil No. 94-1122)

Donna M. Hurley, and Patrick K. Hurley, Appellants No. 96-5738

On Appeal from the United States District Court for the District of New Jersey (D.C. Nos. 93-cv-00260, 94-cv-01122)

3Argued May 4, 1998

Reargued October 5, 1998

BEFORE: BECKER, Chief Judge, SCIRICA and COWEN, Circuit Judges

(Filed March 18, 1999)

Clifford L. Van Syoc, Esq. (Argued) Van Syoc Law Offices 200 Lake Drive East, Suite 110

Woodland Falls Park Cherry Hill, New Jersey 08002

Counsel for Plaintiffs-Appellees/ Cross-Appellants

Dennis M. Tuohy, Esq. (Argued) Tuohy & Tuohy

20 South Tennessee Avenue Atlantic City, New Jersey 08401

Counsel for Defendant-Appellant/ Cross-Appellee, Atlantic City Police
Department

Mark Falk, Esq. (Argued) Barry & McMoran One Newark Center, 18th Floor Newark, New Jersey 07102

Counsel for Defendant-Appellant/ Cross-Appellee, Henry Madamba

Richard L. Goldstein, Esq. (Argued) Marshall, Dennehey, Warner, Coleman & Goggin Three Greentree Center, Suite 304 Marlton, New Jersey 08053-3405

Counsel for Defendant/Cross- Appellee, Nicholas V. Rifice

4Thomas F. Bradley, Esq. (Argued)

Hankin, Sandson & Sandman

30 South New York Avenue Atlantic City, New Jersey 08401

Counsel for Defendant/Cross- Appellee, John J. Mooney

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by defendants Henry Madamba and t he Atlantic City Police Department (ACPD) from an amen ded judgment entered upon a jury's determination that Madamba discriminated against plaintiff Donna Hurle y on the basis of her sex in violation of the New Jersey Law Against Discrimination (LAD), N.J. Stat. Ann. 10:5- 1 et seq., and that the ACPD discriminated against her o n the

basis of her sex in violation of the LAD and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.S 20 00e et seq. Donna Hurley cross-appeals from an amended judgment entered upon the jury's determination that defendan t Nicholas Rifice did not discriminate against her in violation of the LAD. She also cross-appeals from the distric t court's order granting defendant John Mooney's motion for summary judgment and the district court's order den ying her motions for prejudgment interest and an additur and granting her motion for attorney's fees subject to a reduced hourly rate. In addition, plaintiff Patrick Hurley appeals from the district court's order granting defendants ' motion for summary judgment on his loss of consortium clai m.

Because the harassing conduct tolerated by the ACPD was longstanding and egregious, and because the tri al

court did not commit reversible error in its eviden tiary decisions or its jury instructions, we will affirm the amended judgment insofar as it imposes liability an d compensatory damages on the ACPD. However, because the punitive damages instructions did not require actua l participation by upper management or willful indiff erence as required by New Jersey law, we will vacate the a mended

5judgment to the extent it imposes punitive damages against

the ACPD and order a new trial on that issue.

Our recent decision in Failla v. City of Passaic, 1 46 F.3d 149 (3d Cir. 1998), set forth our understanding of liability for aiding and abetting under the New Jersey LAD. I n light of Failla, it is evident that the jury instructions on aiding and abetting erred in two critical respects. We wil l therefore reverse the amended judgment entered against Madamb a because the instructions failed to require a findin g that Madamba substantially assisted the harassment. We w ill also vacate the judgment entered in favor of Rifice because the instructions wrongly directed the jury to absol ve Rifice unless he took affirmative harassing acts. However, we will affirm the district court's order granting Mooney's motion for summary judgment because, as we understand New Jersey law, he could not, as a nonsupervisory emplo yee, be liable for aiding and abetting the ACPD's failure t o prevent and redress harassment even if he affirmatively har assed Donna Hurley. We will also affirm the district cour t's order denying plaintiff's motions for prejudgment interes t and an additur and granting plaintiff's motion for attorne y's fees subject to a reduced hourly rate.1

I. Facts and Procedural History2

Plaintiff Donna Hurley has been an officer with the ACPD since February of 1978. She joined the force shortl y after becoming the first female graduate of the Atlantic City Police Academy. Her husband, plaintiff Patrick Hurl ey, is also an officer with the ACPD. For purposes of clar ity, we will refer to Donna Hurley as "Hurley," to Patrick Hurley as "Mr. Hurley," and to Mrs. and Mr. Hurley collective ly as the "Hurleys" or "plaintiffs." The Hurleys met while tr aining at the Police Academy and married in 1980. Hurley alle ges that she was subjected to sexual harassment as earl y as her training at the Police Academy in the late 1970 s. In 1981 her then-supervisor, Sergeant Walter Reay, har assed

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1. The district court had jurisdiction over this ca se pursuant to 28 U.S.C. SS 1331, 1343, and 1367. We have jurisdictio n over this appeal pursuant to 28 U.S.C. S 1291.

2. The facts recited were all adduced at trial.

6her by making sexually derogatory comments about he r

hygiene during roll call, disturbed her while she w as changing in the drill room, spoke to her in condesc ending tones during radio transmissions, and held her to s tricter standards than male officers. During that year, fel low officers allegedly referred to Hurley as "the cunt" and placed a tampon and a copy of Hustler magazine in her squa d car.

Despite these and other obstacles,3 Hurley was prom oted

in November of 1987 and became the first female ser geant at the ACPD. Although her title changed as a result of this promotion, Hurley claims that her assignments conti nued to be menial and provided no useful experience. At one point, for example, Hurley was assigned to the Juve nile Truancy Task Force, where her job was to keep stati stics on juvenile truants and where, although a sergeant, sh e supervised no one.

The ACPD divides its officers into three shifts: 8: 00 a.m. to 4:00 p.m., or "Alpha Platoon"; 4:00 p.m. to 12:0 0 midnight, or "Bravo Platoon"; and midnight to 8:00 a.m., or "Charlie Platoon." After working approximately two years as a sergeant on Alpha Platoon, Hurley was transferred in January 1990 to desk sergeant of Charlie Platoon, w here she came under the direct command of defendant Capt ain Henry Madamba. The events at the core of this case occurred while Hurley worked in Charlie Platoon. Du ring her first week on this assignment, Madamba allegedl y told plaintiff that upper management sent a woman to his unit to "break his balls," and that he "did not expect [ her] to be here on this shift very long." App. at 2749-50. Mad amba also allegedly advised Hurley to request a hardship transfer

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3. In addition to the harassment, Hurley testified that, prior to January of 1987, she was given "lowly positions that offere d no useful experience or potential for advancement." Hurley v. Atlantic C ity Police Dep't, 933

F. Supp. 396, 405 (D.N.J. 1996). For example, she test ified that she was assigned to the Records Bureau to perform menial co pying tasks. See App. at 2420. She also testified that she was assig ned to security desk duty, which consisted of signing civilians in and o ut of the department building, and fire watch, which consisted of watchi ng one particular building for an outbreak of fire. Hurley did not, h owever, include a failure to train or promote claim in her complaint.

7out of Charlie Platoon and gave a male officer with less

seniority a more favorable schedule.

Hurley testified that she was sexually harassed throughout her entire tour on Charlie Platoon by he r superiors and her coworkers. This harassment includ ed "keying out" her radio transmissions,4 demeaning comments by Madamba during roll call, and exclusion from sergeants' meetings. In addition, officers placed a sanitary napkin with sergeant's stripes over the roll call p odium and affixed a dildo either to the wall or the podium in the roll call room. Finally, she was the subject of sexually explicit graffiti and drawings of herself at three locations on city property: the roll call room, the roll call bathroo m, and the bathroom of the Masonic Temple, a building used by both employees and the public. Several of the most egreg ious examples of the offensive material, of appallingly low character, are set forth in the margin.5

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4. "Keying out" or "clicking out" consists of depre ssing the "On" and

"Off " buttons of a radio transmitter to block the communications of the officer who is using the airway.

5. Hurley was compelled to attend roll call in fron t of a life-size drawing of herself performing oral sex as her supervisor, M adamba, sat eight feet away. In addition, the following graffiti appeared on a wall in the roll

call bathroom, which was commonly used and open to the p ublic:

Oh sweet Donna Hurley With cunt hair so curley Your blond hair seems so soft and stays in p lace When I toss off my cookies in your face I'd like to stick my cock in your ass But when I think of Lt. Andros my cock gets soft fast So keep up your spirits and don't get depres sed Cause even though your a cunt I'd like to pr ess yourflesh Though in uniform your rude and brass Your just another sex machine with my cock i n your ass

Next to this was a graphic drawing of a naked women labeled "Donna Hurley" and bearing sergeant's stripes. Near the dr awing, and apparently written by several different hands, were the scrawl ed phrases "just another fuck doll," "she should look this good." an d "Lt. Andros was

here." Lieutenant Andros was a co-worker with whom Hurley was

rumored to have had an affair.

8Hurley also testified that Madamba personally haras sed

her while she was on Charlie Platoon. In addition t o the insults he directed at her during roll call and his decision to exclude her from sergeants' meetings, Captain Ma damba allegedly refused to take action against officers w ho "keyed out" plaintiff 's radio transmissions, and told her that she was "too emotional" about the sanitary napkin incid ent. At one point, he reacted to the latest sexually explic it graffiti by rushing to see it and laughingly informing Hurle y, in front of her colleagues, that "it's really bad," bu t he took no action to remove or prevent the appearance of the g raffiti. In September of 1990, he sent a memorandum to defen dant Rifice, an Inspector at the time, stating that Hurl ey had abused her sick leave. As a result, then-Chief of P olice Robert McDuffie sent Hurley a memorandum requiring her to produce a doctor's note every time she took sick leave.

Hurley testified that when she complained to Madamb a that the harassment at Charlie Platoon was becoming too much for her, he replied that women in the private sector are protected against such harassment because they" sleep with their bosses." App. at 2776-77. When she attem pted to change the topic of conversation and commented on Madamba's apparent weight loss, he stated that he l ost weight by "having sex a few times a day," and that women came to him "when they're ready." App. at 2498-2508

. Hurley interpreted this entire conversation as a so licitation

for sex.

Hurley also testified that another sergeant on Char lie Platoon, defendant John Mooney, sexually discrimina ted against her in two ways. First, Mooney made several sexually derogatory comments to her, some of which Madamba witnessed yet did nothing to stop. For exam ple, Mooney remarked that he had heard that Hurley "like d it hard and stiff," and suggested that, when Hurley me t with Police Captain McKenna, she was actually performing oral sex on him. See X App. at A2516, A2514. On another occasion, when Hurley was unable to locate her coff ee mug, Mooney asked her if she wanted to drink out of his jock cup. See id. at A2514. Second, Mooney used his infl uence, which far exceeded his position as sergeant, to tra nsfer Hurley to an undesirable assignment because of her sex.6

___________________________________________________ ______________

6. Although Hurley and Mooney shared the same rank at that time, she alleges that

9In particular, Hurley claims that Mooney was respon sible

for her transfer from her position as Court Liaison Officer to the Juvenile Truancy Task Force.

After Mr. Hurley's efforts to intervene on his wife 's behalf failed, Hurley submitted a memorandum to Madamba on November 1, 1990, detailing the harassment she experienced during her tour on Charlie Platoon and requesting a transfer. Madamba forwarded Hurley's m emo to the Chief of Police along with a memo of his own requesting that Internal Affairs conduct an investi gation of Hurley for allegedly lying in the memo as part of a conspiracy to get money from the ACPD. No investiga tion along these lines was ever conducted.

Shortly thereafter, Hurley was transferred to the A lpha Platoon shift of the Property and Evidence Unit. Al though she had requested a transfer out of Charlie Platoon , Hurley alleges that this particular transfer constituted r etaliation

for her sexual harassment memorandum because the Property and Evidence Unit was widely regarded as a n undesirable position, and the Alpha Platoon was incompatible with the personal schedule to which sh e had become adjusted while working on Charlie Platoon. H urley also alleges that when she was transferred to the P roperty and Evidence Unit, she was denied a three percent p ay increase that ACPD officers receive when transferre d to plain clothes duty. She eventually received this in crease on April 20, 1993, retroactive to November 8, 1990. Hu rley

contends that the harassment continued even after s he left

Charlie Platoon.

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Mooney had obtained power far beyond that wh ich would otherwise be expected to be held by a mere sergeant. A s a result of his years of acting as the former chief 's aid and con fidant, the political prominence of his councilman father, the hig h position of his brother-in-law, Inspector Polk, who is marri ed to Mooney's sister, Captain Michelle Polk, and the widespread pe rception in the department that Mooney was destined to becom e the Chief, Mooney was in a position to abuse his real authorit y without fear of

consequences.

Appellee's Br. at 37.

10For example, the graffiti apparently remained on th e

walls well after her transfer. Rifice, who had been promoted to Police Chief, testified at trial that he heard c omplaints about the graffiti as late as March of 1992, and Mr . Hurley took photographs of the graffiti in the summer of 1 992. In addition, an EEOC investigation concluded that ther e was sexual graffiti in Hurley's work area as late as Ju ne of 1993. Moreover, on June 13, 1992, while Hurley was attending a police seminar, Mooney, then Captain of Charlie Platoon, allegedly approached her and calle d her "the ass up from the Property Room" in front of two other sergeants.

Hurley further avers that the Chief of Police, defe ndant Rifice, was aware of her plight and failed to take steps to protect her and discipline the perpetrators. She al so testified that Rifice personally committed several affirmative acts of sexual discrimination against her. These ac ts included: (1) transferring her to the Property and Evidence Unit; (2) denying her access to Chief McDuffie; (3) denying her a three percent pay raise when she transferred to plainclothes duty; (4) denying her request for fune ral leave; and (5) condoning an improper Internal Affairs inve stigation into her conduct while she was assigned to the Prop erty

Room.

Hurley worked continuously until July 26, 1994, aft er which she went on an extended paid sick leave. She asserts that, as a result of the harassment, she has suffer ed severe

emotional distress that has interfered with her wor k, her personal life, and her family life. Mr. Hurley alle ges that the harassment has detrimentally affected his relations hip with

his wife.

On July 10, 1992, Hurley filed complaints with both the United States Equal Employment Opportunity Commissi on (EEOC) and the New Jersey Department of Law and Pub lic Safety, Division of Civil Rights (DCR). Both compla ints named the ACPD as the sole respondent and alleged t hat Hurley had been harassed while on Charlie Platoon. Hurley

submitted an affidavit in connection with her EEOC complaint alleging that Madamba and Mooney harassed her during her tour on Charlie Platoon. She claimed tha t obscene drawings of her remained visible as late as March

11of 1992, and that her transfer to the Property and Evidence

Unit and denial of the three percent pay raise were in retaliation for her complaints of sexual harassment

.

On January 30, 1993, before the EEOC had issued plaintiff a right to sue letter pursuant to 42 U.S. C. S 2000e- (f)(1), the Hurleys filed the district court compla int which stated all of Hurley's instant claims. Subsequently , on October 12, 1993, the EEOC issued a determination o n Hurley's charge. The EEOC investigator found probab le cause to believe that Hurley had been sexually hara ssed while she was on Charlie Platoon, but no probable c ause on retaliation charge regarding the transfer to the Pr operty and Evidence Unit and the denial of the three percent p ay increase. On March 7, 1994, the Hurleys filed a sec ond complaint. This complaint relied on the facts state d in the previous complaint and alleged discrimination pursu ant to 42 U.S.C. S 2000e-2 and retaliation pursuant to 42 U.S.C. S 2000e-3(a). The district court subsequently conso lidated these two complaints.7

Following extensive discovery, each of the defendan ts moved for summary judgment. The district court gran ted Mooney's motion for summary judgment, and dismissed all claims against Madamba and Rifice with the exceptio n of Hurley's aiding and abetting claims under the LAD. Additionally, the court dismissed all claims agains t the ACPD except for Hurley's hostile work environment c laim under Title VII, Section 1983, and the LAD.

The jury trial lasted more than two months. At the conclusion of the liability portion of the trial, t he jury rendered a verdict against Madamba and the ACPD but found Rifice not liable. The jury awarded $575,000 in compensatory damages and awarded punitive damages against the ACPD but not against Madamba. A punitiv e damage hearing was conducted before the jury, at th e end of which the jury awarded Hurley $700,000 in puniti ve damages.

The ACPD and Madamba moved for judgment as a matter

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7. We note that the Hurleys' retaliation claims, ar ising from the ACPD's acts after this lawsuit was filed, are not part of this appeal.

12of law or, in the alternative, a new trial or a rem ittitur.

Hurley moved for a new trial as to Rifice, and an a dditur with respect to the entire damages award. In additi on, Rifice and Mooney, as well as Hurley, moved for att orneys'

fees and costs.

The district court denied defendants' motion for a new trial and for a remittitur as to punitive damages a nd also denied plaintiff's motion for an additur. However, the court granted defendants' motions for a remittitur with r espect to the compensatory damages award, which the court rem itted to $175,000. The court also denied the defendants' fee petitions, but granted plaintiff's petition, subjec t to a reduced hourly rate and the exclusion of hours spen t in pursuit of unsuccessful claims. Hurley accepted the remittitur, and the court awarded counsel fees and costs in favor of Hurley in the amount of $516,046 and $70,1 35, respectively. The court then entered an amended jud gment. This appeal and cross-appeals followed.

II. The ACPD's Liability

The ACPD argues that it is entitled to a new trial for five reasons. First, it contends that the district court abused its

discretion under Rule 403 of the Federal Rules of E vidence by admitting "highly inflammatory and largely irrel evant evidence regarding alleged misconduct at the ACPD t o which the plaintiff was not exposed." ACPD's Br. at 2. Second, it contends that the district court's rulin g that plaintiff's psychiatric expert could testify about a second diagnosis that was not contained in his reports "re sult[ed] in prejudicial surprise `inconsistent with substant ial justice.' " Id. at 40 (quoting Conway v. Chemical L eaman Tank Lines, Inc., 687 F.2d 108, 111-12 (5th Cir. 19 82)). Third, the ACPD asserts that the punitive damage aw ard of $700,000 against it is so excessive that it creates an inference that the jury's liability verdict "result ed from its passion and prejudice toward the City of Atlantic C ity." Id. at 46 (citing Dunn v. HOVIC, 1 F.3d 1371, 1382 (3d Cir.) (en banc), modified on other grounds, 13 F.3d 58 (3d Ci r. 1993)). Fourth, the ACPD claims that the district c ourt's jury charge under the LAD was misleading, confusing , and contrary to the law. Finally, on reargument, which we held

13in the wake of the recently decided Supreme Court c ases of

Burlington Industries, Inc. v. Ellerth, 524 U.S. 74 2, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton , 524 U.S. 775, 118 S. Ct. 2275 (1998), the ACPD submits that these cases entitle it to a new trial on liability. We will address these arguments in turn.

A. Evidence Not Obviously Linked to Hurley's Experi ence in

Charlie Platoon

During trial, and over defendants' objections, the district court permitted a number of witnesses to testify ab out alleged incidents of harassment and retaliation tha t were

either remote in time from the "accrual date"8 or i nvolved matters of which Hurley was unaware until after she filed suit. This testimony can be divided into three cate gories: (1) testimony by four women who were associated with th e ACPD about incidents of sexual harassment and retal iation of which Hurley had no knowledge until after commen cing suit; (2) testimony by eight male police officers a bout

"locker-room" conversations between men outside the presence of women; and (3) testimony by Patrick and Donna Hurley about several incidents of sexual hara ssment against Mrs. Hurley between 1978 and 1981.

The ACPD raises several arguments to support its

contention that the district court abused its discr etion by admitting this testimony. First, the ACPD points ou t that Hurley was unaware of most of these comments until after she filed suit. Thus, the comments could not possib ly

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8. In its August 4, 1995 opinion and order, the dis trict court concluded that the claims that formed the basis of plaintiff 's sexual

discrimination allegations began in late 1989 or early 1990, upon plaintiff 's transfer

to Charlie Platoon. App. at 5752. However, at the begi nning of trial, the court expanded the time frame from which plaintiff could assert claims of sexual discrimination to January 20, 1987, based upon the court's

conclusion that such claims would have been within the six-year statute of limitations that the court found applicable to c laims under the LAD. In Montells v. Haynes, 627 A.2d 654, 659 (N.J. 1993 ), the New Jersey Supreme Court adopted a two-year statute of limitat ions for claims under the LAD. However, the Montells court also hel d that its decision did not apply to cases pending at that time or to c ases in which the operative facts arose before the date of the court' s decision, see id. at 662, circumstances present here.

14contribute to a hostile work environment for her. S econd, it

argues that it was impossible to rebut most of the alleged incidents at trial because they occurred at unspeci fied times and locations. Third, the ACPD asserts that i ncidents from 1978 to 1981 were too remote in time to be pro bative. Finally, the ACPD maintains that the district court 's limiting instructions regarding this evidence were insufficient to offset the unfair prejudice resulti ng from these rulings.

1. The Challenged Evidence

The district court permitted four women who had bee n associated with the ACPD to testify regarding the harassment of women within the department. Hurley d id not witness any of these incidents, nor did she bec ome aware of the alleged harassment until after she com menced

suit.

Martha Donovan, a municipal prosecutor for the City of Atlantic City, testified about some mistreatment of Hurley

that she had observed and also testified about an i ncident involving Sergeant Edward Yard of the ACPD. Accordi ng to Ms. Donovan's testimony, in the summer of 1989 Serg eant

Yard called Ms. Donovan a "cunt" and stated that he "ought to slap [her] face" for giving him an order; the in cident occurred in front of fifty other people, including other police officers, in the hallway of the courthouse. See IV App. at A831. Donovan immediately complained to her supervi sor and the officer ultimately apologized. At some poin t thereafter, Sergeant Yard's responsibilities were c hanged,

and he had minimal contacts with Ms. Donovan thenceforth. Ms. Donovan never reported the inciden t to the ACPD supervisory staff.

Julia Cardy and Lisa O'Keefe, two civilian employee s of the ACPD in the payroll department, testified that they were generally dissatisfied with their male ACPD supervi sors. Ms. Cardy testified that in 1992, as a result of re porting her supervisor, Sergeant Griggs, to his immediate super visor, Captain MacDonald, for his misbehavior, she was ret aliated against and subjected to chauvinistic remarks. Ms. Cardy further testified that women were treated "pretty p oorly" if they "spoke out" against the mistreatment. V App. a t

15A1166, A1171. Ms. O'Keefe stated that Sergeant Grig gs and

Captain MacDonald treated her with disrespect over a long period of time extending to at least 1992, when the re was apparently some ill-feeling towards female employee s as a result of Hurley's lawsuit. See IV App. at A858-60. She also testified that complaints to Rifice received no res ponse, see id. at A862, although she ultimately filed a union grievance and the offending officers were removed from author ity over the payroll department.

Officer Deborah Rando of the ACPD testified about t he derogatory and sexually demeaning statements made t o her in 1992 by her supervisor, defendant Mooney. At one point, Mooney referred to her conduct in profane terms and , when she objected, informed her that no one would believ e her if she complained. See id. at A943. Despite this, she did complain to Mooney's supervisor, who warned her to think about her career and told her not to repeat her all egations to anyone. See id. at A948-50.

The district court permitted eight male police offi cers from the ACPD to testify at trial about derogatory comments made about women generally. These officers testified that, at least from 1990 to the time of t rial, women were commonly referred to as "cunts," "douche bags, " "broads," "bitches," and, as a group, "the crack tr oop." App. at A413, A768. In addition, one officer testified t hat most inspectors and captains commonly referred to Hurley as "the whacky [sic] cunt." Id. at 443. These same off icers testified, however, that these comments were always made outside the presence of women. Hurley was unaware o f

these comments until after she commenced suit.

Finally, the district court permitted both Patrick and Donna Hurley to testify, over objection, about even ts occurring well before the January 20, 1987 accrual date. For example, Mr. Hurley testified about alleged act s of discrimination against his wife dating back to her tenure at the Police Academy in 1978. He also testified about comments allegedly made by Hurley's supervisor, Ser geant Walter Reay, between 1978 and 1980. Reay supposedly asked Hurley about her personal hygiene and made we ekly comments during roll call.

16Hurley also testified about various incidents that

allegedly occurred in 1981, when she was a patrol o fficer and Louis Rivera was her partner. Hurley testified that she

"heard" that she was referred to as a "cunt." Id. a t 2388-90. The court also permitted her to testify that, durin g 1981, a Hustler magazine was left on her patrol car seat an d a tampon was hung from her rear view mirror.

2. Admissibility of the Evidence

In the district court's view, all of the evidence w as admitted for the same purpose: to "permit[ ] the ju ry to more intelligently evaluate the evidence that did c reate liability." Hurley, 933 F. Supp. at 411. The court reasoned that permitting

evidence of other women's experiences at the ACPD, of

the attitudes of male officers towards women generally, and of Hurley's experiences prior to 1987 se rved several important purposes in this trial. It allowed the jury to gain insight into the motives, attit udes, and intentions of the defendants. It gave them t he opportunity to evaluate the adequacy of mana gement's response to Hurley's complaints during the s tatutory period. It provided the jury with a sense of whether the events that took place during the statutory period were anomalous or accidental, or instead were par t of a "pervasive and severe" pattern.

Plaintiff's treatment during the statutory period was unquestionably influenced by and related to her treatment throughout the course of her caree r at the ACPD. Plaintiff's experience was reflective of the general attitudes of the men around her; tho se attitudes also influenced, and were revealed in, the

treatment of other women in the ACPD.

Id.

Although the district court believed that evidence of past harassment was "crucial to the jury's evaluation of the work environment at the ACPD," id. at 410, the cour t instructed the jury not to consider the evidence di rectly for purposes of liability. See id. at 411. Specifically , the court

stated:

17You are to consider whether each defendant h as

engaged in sexual discrimination for the per iod from January 20, 1987, through January 20, 1993. You may consider evidence from before and after these dates to help you evaluate the defendants' c onduct from January 20, 1987, through January 20, 1 993, but liability attaches, if at all, only to d efendants' conduct during this period.

Id. (alteration removed). The court believed that, "[b]y admitting the evidence but forbidding the jury to c onsider it as directly relating to liability, [it was] able to balance the interests of the plaintiff and the defendants." Id. In addition, the court instructed the jury that, in de termining whether or not a hostile work environment existed, it could only consider conduct that actually altered Hurley' s own work environment during the relevant period. See Ap p. at

A5278.

The evidence issues fall largely within the ambit o f Federal Rule of Evidence 401, which defines relevan t evidence as "evidence having any tendency to make t he existence of any fact that is of consequence to the determination of the action more or less probable t han it

would be without the evidence."9 Rule 401 does not raise a high standard. See In re Paoli R.R. Yard PCB Litig. , 35 F.3d 717, 782-83 (3d Cir. 1994). Also implicated in our discussion is Rule 403, which provides, in pertinen t part,

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9. The parties have not argued that we need apply N ew Jersey procedure to the New Jersey claims, and we will apply the fed eral rules to both. See Purgess v. Sharrock, 33 F.3d 134, 139-40 (2d Cir. 1 994); cf. Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 671 F.2d 100, 104 (3d Cir. 1982) (holding that the federal rule favoring admis sibility of relevant evidence applies to state law claims in federal cas es to which state law privileges might otherwise apply); Salas by Salas v . Wang, 846 F.2d 897, 905-06 (3d Cir. 1988) (discussing the standard for applying state evidentiary rules in pure diversity cases). Nor is there any indication

that New Jersey admissibility rules differ in any releva nt respect, as we think New Jersey's law recognizes the same principles we discuss in text. See Rendine v. Pantzer, 648 A.2d 223, 237-38 (N.J. Supe r. Ct. App. Div. 1994) (discussing the admissibility of evidence of discrimination against other people to prove motive or intent under N.J.R. E. 404(b)), aff 'd in relevant part, 661 A.2d 1202, 1213 (N.J. 1995).

18that "[relevant] evidence may be excluded if its pr obative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading t he jury . . . ." We review evidentiary rulings for abuse of discretion, see Ryder v. Westinghouse Elec. Corp., 128 F.3d 128 , 132 (3d Cir. 1997), with substantial deference under Ru le 403.10

We conclude that the district court did not abuse i ts discretion under Rules 401 or 403 by admitting most of the challenged evidence, and that the error with respec t to a portion thereof was harmless.

Evidence that women other than the plaintiff were subjected to a hostile work environment clearly mee ts Rule 401's requirements in a number of situations. For e xample, a plaintiff may show that, while she was not person ally subjected to harassing conduct, her working conditi ons were nevertheless altered as a result of witnessing a defendant's hostility towards other women at the workplace. See Lehmann, 626 A.2d at 457 ("A woman's perception that her work environment is hostile to women will obviously be reinforced if she witnesses the h arassment of other female workers.").

A plaintiff's knowledge of harassment or pervasivel y sexist attitudes is not, however, a requirement for admitting testimony on those subjects in a harassment suit. E vidence of harassment of other women and widespread sexism is also probative of "whether one of the principal non discriminatory reasons asserted by [an employer] fo r its actions was in fact a pretext for . . . discriminat ion." Glass v. Philadelphia Elec. Corp., 34 F.3d 188, 194 (3d C ir. 1994); see also Heyne v. Caruso, 69 F.3d 1475, 1480 (9th C ir. 1995). In Glass, we found reversible error where th e plaintiff attempted to introduce evidence of past r acial harassment to explain negative evaluations and the trial

court excluded it because it was time-barred. Glass relied

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10. We have held that a trial judge is given very s ubstantial discretion when striking a Rule 403 balance, see United States v. Eufrasio, 935 F.2d 553, 572 (3d Cir. 1991), and that "a trial jud ge's decision to admit or exclude evidence under Fed. R. Evid. 403 may not be reversed unless it is arbitrary and irrational." Bhaya v. Westingho use Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990) (quotation marks omitt ed).

19on Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1 103 (8th

Cir. 1988), adopting its holding that circumstantia l proof of discrimination, including evidence of past harassme nt and evidence of discrimination against others in the pr otected class, is admissible. Moreover, in Rule 403 terms, this evidence is highly probative, hence it is unlikely that any putative prejudice therefrom will be unfair or will outweigh

its value.11

The principles established by our precedent apply t o this

case. Evidence of other acts of harassment is extre mely probative as to whether the harassment was sexually discriminatory and whether the ACPD knew or should have known that sexual harassment was occurring despite the formal existence of an anti-harassment policy. See West v. Philadelphia Elec. Co., 45 F.3d 744, 752 (3d Cir. 1 995). Neither of these questions depends on the plaintiff 's knowledge of incidents; instead, they go to the mot ive behind the harassment, which may help the jury inte rpret otherwise ambiguous acts, and to the employer's lia bility. This kind of evidence is particularly important giv en the ACPD's main defenses at trial, which were that the incidents of abuse Hurley suffered were trivial hor seplay to which both men and women were subjected and that it s written sexual harassment policy was sufficient to insulate it from liability. Contrary to the ACPD's position, it is implausible in the extreme that Hurley was somehow immune from the pervasive sexism at the ACPD, as it was described by both female and male officers. See Hur ley, 933 F. Supp. at 411; see also Josey v. John R. Hollings worth Corp., 996 F.2d 632 (3d Cir. 1993) (holding that em ployees'

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11. We note that, but for these precepts, clever di scriminators might

isolate each instance of discrimination and make it seem trivial or neutral. See Glass, 45 F.3d at 195; see also Aman v . Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (ev idence of time-barred harassment and discrimination against others in the plaintiff 's class was relevant); Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 (11th Cir. 1989) (acts directed at others can be ev idence of discrimination against the plaintiff). We also note apposite New Jersey precedent that a plaintiff may present evidence abo ut the harassment of other women to establish employer liability. See Le hmann v. Toys `R' Us, Inc., 626 A.2d 445, 462 (N.J. 1993).

20remarks and racially derogatory notes sent by unide ntified

people were circumstantial evidence that management permitted an atmosphere of prejudice to infect the workplace).

The challenged evidence creates a basis for an infe rence that Hurley was targeted for abuse because she was a woman. It also gives reason to infer that the ACPD knew or should have known not only what was happening to it s female officers but also, and most importantly, tha t the written sexual harassment policy was ineffective, a nd patently so. Indeed, it is hard to imagine evidence more relevant to the issue of whether a sexual harassmen t policy was generally effective than evidence that male off icers did not respect it and that female officers were not pr otected by

it.

Officer Rando and Ms. Cardy, for example, both test ified about the dismissive and even retaliatory treatment they experienced when they reported male officers' misbe havior, and this was relevant, probative evidence that the ACPD was consistently insensitive to female employees' experiences of harassment. See Hunter v. Allis-Chal mers Corp., 797 F.2d 1417 (7th Cir. 1986) (evidence of f requent misconduct against plaintiff and others was "pertin ent, perhaps essential" to the employer liability determ ination); Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985 ) (same), aff'd sub nom. Meritor Sav. Bank, FSB v. Vinson, 47 7 U.S. 57 (1986). This evidence remains highly relevant un der Ellerth and Faragher. See Faragher, 118 S. Ct. at 2 293 (discussing evidence of city's general failure to d isseminate and enforce its sexual harassment policy in rejecti ng the availability of the affirmative defense in a partic ular case of harassment).

Aside from its relevance to the issue of whether th e ACPD is liable for the hostile environment Hurley encoun tered,

the evidence is also relevant to her intentional se x discrimination, quid pro quo, and retaliation claim s. The general atmosphere of sexism reflected by the chall enged evidence is quite probative of whether decisionmake rs at

the ACPD felt free to take sex into account when ma king employment decisions, when deciding whether to abus e their positions by asking for sexual favors, and wh en

21responding to sexual harassment complaints. As Glas s

held, evidence of pervasive sexual harassment makes retaliation claims more credible, because harassers may be expected to resent attempts to curb their male prer ogatives. See Glass, 34 F.3d at 195; see also Hawkins v. Henn epin Technical Ctr., 900 F.2d 153, 156 (8th Cir. 1990).

Evidence of sexually derogatory and sexist harassme nt makes disparate treatment claims more credible as w ell, since such discriminatory acts stem from similar mo tives. See Glass, 34 F.3d at 192; Josey, 996 F.2d at 641; Hawkins, 900 F.2d at 155; Hunter, 797 F.2d at 1421. Other courts have found similarly with respect to quid pr o quo claims. See Heyne, 69 F.3d at 1479-80; Phillips v. Smalley Maintenance Servs., Inc., 711 F.2d 1524, 1532 (11th Cir. 1983); Sowers v. Kemira, Inc., 701 F. Supp. 809, 81 6 (S.D. Ga. 1988). In this case, because of its high probat ive value, there was no abuse of discretion in admitting the challenged testimony from other officers.12 Any put ative prejudice was not unfair, and at all events was out weighed by the probative value. Nor are any of the other Ru le 403 factors present to counsel exclusion.

We do believe that evidence of events from 1979 to 1981 was improperly admitted because it was too distant in time

from the events at the center of the ACPD's liabili ty. Hurley did not claim a continuing violation from 1979 to 1 992, and

the district court abused its discretion when it ad mitted evidence from that distinct period in Hurley's care er. We may find such error harmless only if "it is highly probable

that the error did not affect the outcome of the ca se." Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 53 (3d Cir. 1989); see also McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924, 927-28 (3d Cir. 1985).

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12. We also note that the alleged vagueness in the testimony, which the ACPD emphasizes, is limited to the testimony about general conditions in the ACPD and not to the many specific incidents to which the witnesses testified. This "vagueness" stems from th e fact that male officers' misconduct was apparently so common as to blend into the background except when something particularly egreg ious occurred. The extent to which witnesses' inability to identify da tes and places affected the witnesses' credibility could be, and was, addre ssed on crossexamination.

22In this case, the error was harmless. As the distri ct court

noted:

This is a case where the plaintiff was compe lled to

attend roll call in front of a life-size dra wing of herself performing oral sex as her supervisor, Madam ba, sat eight feet away; where, in addition to perva sive graffiti directed at plaintiff, a sanitary napkin bea ring sergeant's stripes dangled over the podium f rom which she spoke, and a dildo was affixed to a wall or ceiling nearby; and where plaintiff's professionalis m and performance were constantly undermined becau se the

men on the force could not tolerate a women among them. It is a case where the plaintiff's sup ervisor responded to plaintiff's entreaties by insin uating that he might be able to help her if only she wou ld sleep

with him.

Hurley, 933 F. Supp. at 413 (citations omitted). Wh en viewed against the uncontestably relevant and admis sible evidence, it is highly improbable that the improper ly admitted evidence affected the judgment in this cas e. Indeed, were we to hold all of the evidence challen ged by the ACPD inadmissible, we believe that its admissio n would still amount to harmless error, so clear is the evi dence of the harassment Hurley experienced.

For the foregoing reasons, the ACPD's Rule 403-base d evidentiary arguments fail.

B. Dr. Hoyme's "Surprise" Testimony

Dr. Hoyme, plaintiff's psychological expert, issued his first report on November 16, 1994. In that report, he wrote that "[m]y diagnosis [of Donna and Patrick Hurley] is Adjustment Disorder with mixed features of anxiety and depressed mood (309.28 DSM IV) . . . . This diagnos is carries an implied causal connection between their traumatic experiences (sexual harassment, hostile w ork environment, and subsequent harassment) and their symptoms." App. at 5387. Subsequently, on February 20, 1995, Dr. Hoyme submitted another report in respons e to a report issued by defendants' psychological expert , Dr. Toborowsky. According to Dr. Hoyme's rebuttal repor t:

23Mrs. Hurley has experienced severe emotional injury

and pain as the result of sexual harassment in the course of her work in the Atlantic City Poli ce Department. Contrary to Dr. Toborowsky's sta nce, it is not necessary to prove that she has develope d diagnosable psychiatric disorder in order to recognize

or validate this substantial harm.

Id. at 5849.

On March 2, 1995, the magistrate judge ordered that Dr. Hoyme's rebuttal report be barred as untimely. Hurl ey appealed this decision to the district court, and t he court initially upheld the magistrate's decision. The cou rt also ruled, however, that Hurley could renew this motion at trial

when the court "would have a better sense of the significance of the testimony." Hurley, 933 F. Supp . at 408. Hurley renewed her motion at trial, and the distric t court overruled the magistrate's decision "[b]ecause [the court was] concerned that the magistrate judge's sanction s against the plaintiff cut too close to the essentia l truthseeking function of the Court . . . ." Id. At trial , Dr. Hoyme testified about "another diagnosis that didn't neat ly fit into the DSM criteria": a reaction to a "psychological a ssault." App. at 1667-68. He further testified that the defe ndants' conduct constituted an "aggressive attack on her" a nd a kind of "sexual assault" which caused severe pain comparable to a physical touching. Id. at 1726-29. In closing, Hurley's counsel also referred to Dr. Hoym e's "psychological assault" testimony as a basis for aw arding damages.

The ACPD argues that Dr. Hoyme's reference to a "se cond diagnosis" regarding a "psychological assault" on D onna Hurley constituted unfair surprise because the test imony was materially different from that offered previous ly and provided the defendants with no meaningful opportun ity for rebuttal. This unfair surprise, according to the AC PD, was "inconsistent with substantial justice" and warrant s a new trial. We disagree.

A district court's decision to allow an expert to t estify beyond the scope of his report is reviewed under an abuse of discretion standard. See Greate Bay Hotel & Casi no v.

24Tose, 34 F.3d 1227, 1236 (3d Cir. 1994). "We determ ine

whether there has been an abuse of discretion by considering four factors: `(1) the prejudice or sur prise in fact to the opposing party, (2) the ability of the party to cure the prejudice, (3) the extent of disruption of the orderly and efficient trial of the case, and (4) the bad faith or willfulness of the non-compliance.' " Id. (quoting Beissel v. P ittsburgh & Lake Erie R. Co., 801 F.2d 143, 150 (3d Cir. 1986))

.

We cannot conclude that the district court abused i ts discretion by permitting Dr. Hoyme's so-called "sec ond diagnosis." First, notwithstanding Dr. Hoyme's rebu ttal report, his initial report hinted strongly at this "second diagnosis," because it contained an explanation of the severe harm inflicted by the extensive sexual haras sment Hurley experienced. Second, the defendants actually received the rebuttal report and were unquestionabl y aware of the appealability of the magistrate judge's orde r. Moreover, the defendants had several weeks after Dr

. Hoyme's testimony to prepare rebuttal testimony and , thus, cure any possible prejudice. Indeed, Dr. Toborowsky testified that he had previously read both the depo sition and courtroom testimony of Dr. Hoyme. Third, there was no need to call any witnesses out of order or any othe r disruptions at trial. Finally, while this evidentia ry dispute might have been the product of "discovery-based bic kering between the lawyers" and the "institutional differe nces between lawyers, who demand unvarying precision, an d psychiatrists," see Hurley, 933 F. Supp. at 408, th ere is no

evidence of bad faith.

C. Inference of Jury Prejudice and Passion

The ACPD contends that the $700,000 punitive damage award was the "product of the same abandonment of`c ool reason' in favor of `outrage and disgust' which sho cked the trial court's conscience with respect to the compen satory damages." ACPD Br. at 46. Indeed, the ACPD argues t hat this "award was so excessive as to give rise to a c lear inference that the jury verdict was the result of m istake, passion, prejudice or partiality." Id. at 43. There fore, according to the ACPD, we must set aside the jury's verdict and order a new trial. Once again, we disagree.

25In Dunn, we observed that a defendant would be enti tled

to a new trial, rather than remittitur, upon showin g that "the jury verdict resulted from passion or prejudic e." Dunn, 1 F.3d at 1383; see also 11 Charles Alan Wright et al., Federal Practice and Procedure S 2815, at 165 (2d e d. 1995) (remittitur is "not proper if the verdict was the r esult of passion and prejudice, since prejudice may have inf ected the decision of the jury on liability, as well as o n damages"). We further rejected the argument, however, that"the size of the award alone was enough to prove prejudice and passion." Dunn, 1 F.3d at 1383; see also Mason v. T exaco, Inc., 948 F.2d 1546, 1561 (10th Cir. 1991) (reducin g a punitive damage award of $25 million by one-half be cause it shocked the court's conscience, but upholding th e jury's liability determination because there was no eviden ce it was tainted). Here, as in Dunn, the defendant's only ev idence of jury prejudice and passion is the amount of the pun itive damage award itself. This is insufficient, and the ACPD's argument cannot prevail.

D. Jury Charge on Hostile Work Environment

The ACPD also argues that it is entitled to a new t rial because the district court erred in its charge to t he jury on hostile work environment by mixing different concep ts from Title VII and the LAD. Specifically, defendant cont ends that the district court strayed from Lehmann v. Toys`R' Us, Inc., 626 A.2d 445 (N.J. 1993), in which the New Jersey Supreme Court formulated the basic standard for determining whether acts of harassment in the workp lace

constitute invidious discrimination in violation of the LAD. Under the Lehmann standard, a plaintiff must demons trate that "the complained-of conduct (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 a ltered and the working environment is hostile or abusive." Id. at

453.

The ACPD argues that the district court erred when it instructed the jury to consider ten factors, which the district court primarily derived from the ABA Model Charge13

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13. Section 104[2][b] of the ABA Model Charge provi des the following list

of factors that must be considered in hostile work environment claims:

26and Title VII caselaw, when determining whether the ACPD

was liable under the LAD. Finally, the ACPD argues that the district court failed to instruct the jury as t o precisely

how each of the factors bore on the issue of sexual harassment. "We generally review jury instructions for abuse of discretion to determine whether they are misleading or inadequate." Woodson v. Scott Paper C o., 109 F.3d 913, 929 (3d Cir.), cert. denied, 118 S. Ct. 2 99 (1997). "However, when the question is whether the instruct ions misstate the law, our review is plenary." Id. (citi ng Saverese v. Agriss, 883 F.2d 1194, 1202 (3d Cir. 1989)). We review jury instructions to determine whether, "taken as a whole, they properly apprised the jury of the issues and t he applicable law." Dressler v. Busch Entertainment Co rp., 143 F.3d 778, 780 (3d Cir. 1998) (quotation marks omitt ed).

Under the first prong of the Lehmann test, a plaint iff must show "by a preponderance of the evidence that she

suffered discrimination because of her sex." Lehman n, 626

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(1) the total physical environment of the pl aintiff's work area;

(2) the degree and type of obscenity that fi lled the environment of the workplace, both before and after the pla intiff arrived;

(3) the reasonable expectations of the plain tiff upon entering the environment;

(4) the nature of the unwelcome sexual acts or words;

(5) the frequency of the offensive encounter s;

(6) the severity of the conduct;

(7) the context in which the sexual harassme nt occurred;

(8) whether the conduct was unwelcome;

(9) the effect on the plaintiff 's psycholog ical well-being;

(10) whether the conduct was physically thre atening;

(11) whether it was merely an offensive utte rance;

(12) whether it unreasonably interfered with the plaintiff 's work performance.

ABA Model Charge S 104[2][b] (1994).

27A.2d at 454. Because the LAD is not a fault or inte nt-based

statute, a plaintiff "need not show that the employ er intentionally discriminated or harassed her, or int ended to

create a hostile work environment." Id. at 454.

The second prong requires that the objectionable co nduct be sufficiently "severe or pervasive" to state an a ctionable claim. See id. at 455 ("We emphasize that it is the harassing conduct that must be severe or pervasive, not its effect on the plaintiff or on the work environment. " (citing Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) )). In adopting this test, the court expressly rejected th e "regular and pervasive" standard set forth by this court in Andrews, 895 F.2d at 1482. The New Jersey Supreme Court concluded that the Andrews test strayed from the Un ited States Supreme Court's standard in Meritor and "wou ld bar actions based on a single, extremely severe inciden t or,perhaps, even those based on multiple but randomlyoccurring incidents of harassment." Lehmann, 626 A. 2d at 455. Indeed, the New Jersey Supreme Court recently concluded that a plaintiff created a triable issue based on a single racial slur. See Taylor v. Metzger, 706 A. 2d 685 (N.J. 1998).14

The third prong of the Lehmann test considers the harassment from the perspective of a reasonable wom an (or man, as the case may be). Such an objective, gender specific standard, according to the court, "provide s flexibility" by "incorporating community standards" and focuses attention "on the nature and legality of th e conduct, rather than on the reaction of the individ ual plaintiff," Lehmann, 626 A.2d at 458, and it also "recognize[s] and respect[s] the difference between male and female perspectives on sexual harassment." Id. at 4 59.

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14. In Taylor, the plaintiff presented evidence tha t her chief ranking supervisor called her a "jungle bunny" in the prese nce of another supervising officer. The court concluded that these circumstances "were sufficient to establish the severity of the harassm ent and alter the conditions of plaintiff 's work environment." Id. a t 693. Severity is measured by surrounding circumstances, see id. at 6 92, and " `[t]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequenc y of the conduct.' " Lehmann, 626 A.2d at 455 (quoting Ellison, 924 F.2d at 878).

28"Only an idiosyncratic response of a hypersensitive plaintiff

to conduct that a reasonable woman would not find harassing is excluded by the reasonable woman stand ard."

Id. at 458-59.

Finally, under the fourth Lehmann prong, a plaintif f must show that "her working conditions were affected by the harassment to the point at which a reasonable woman would consider the working environment hostile." Id . at 457. A plaintiff need not demonstrate psychological harm or

economic loss.

In this case, the district court's hostile work env ironment sexual harassment charge provided as follows:

It is important to understand that, in dete rmining

whether a hostile work environment existed a t the Atlantic City Police Department, you must co nsider the evidence from the perspective of a reasonabl e woman in the same position. You must look at the e vidence from the perspective of a reasonable woman's reaction

to a similar environment under similar circu mstances. That is, you must determine whether a reason able woman would have been offended or harmed by the conduct in question. You must evaluate the t otal

circumstances and determine whether the alle ged harassing behavior could be objectively clas sified as the kind of behavior that would seriously af fect the psychological or emotional well-being of a r easonable woman. The reasonable woman is simply an ave rage woman of normal sensitivity and emotional ma ke-up.

It is equally important to understand, howe ver, that the reasonable woman standard applies only t o the issue of liability for hostile work environm ent sexual harassment. It does not apply to liability f or intentional sexual harassment, retaliation, or quid pro quo harassment, nor to the calculation of damage s.

Plaintiff has alleged that she has been sub jected to a

hostile work environment because of harassme nt based on her sex. To prevail on this theory, she n eed not demonstrate any job benefits were conditione d on submitting to hostile sexual conduct or were denied because of refusing to give in to that condu ct. Rather,

29to establish a claim of hostile work environ ment sexual

harassment, plaintiff must prove by a prepon derance of

the evidence that the conduct about which sh e complains, one, would not have occurred but for the employee's gender, and it was, two, severe o r pervasive enough to make a, three, reasonable woman be lieve that, four, the conditions of employment are altered and the working environment is hostile or ab usive.

The more severe the conduct, the less exten sive it need be for you to find it is hostile.

Conversely, the less severe the conduct, th e more persuasive [sic] or regular it should be in order for you

to find that it is hostile.

Plaintiff's hostile work environment claim must be related to conditions which actually altered her own work environment. Statements, actions, or co nditions which occurred at the Atlantic City Police D epartment outside the presence of plaintiff and plaint iff was unaware [sic] cannot be considered part of t he hostile work environment, unless you find such state ments, actions or conditions affected the plaintiff 's own work

environment.

In evaluating plaintiff's hostile work envi ronment claims you should consider the following fac tors: one, plaintiff's reasonable expectation upon ente ring the workplace; two, the total physical environme nt of the area in which plaintiff worked; three, wheth er plaintiff was exposed to sexually explicit words or co mments, drawings, graffiti, or obscenity in the work place, and, if so, the degree, persistence, and type such [ sic] obscenity to which exposed; four, whether th e sexually explicit words or comments, drawings, graffi ti or obscenity were directed at plaintiff, and, i f so, the frequency of the offensive encounters; five[ ,] severity of

the conduct and the context in which it occu rred; six, whether the conduct was unwelcome, that is, conduct plaintiff regarded as unwanted or unpleasant ; seven, the likely effect on a reasonable woman's ps ychological well-being; eight, whether the conduct reaso nably[sic] interfered with plaintiff's work performance ; nine, the

30extent to which supervisors upon learning of sexually

harassing conduct, acted promptly and effect ively to respond to such conduct; [ten], whether the complained of conduct was directed at men an d

woman alike.

It is not enough that the work environment was generally harsh, friendly [sic], unple[a]san t, crude or vulgar to all employees of both sexes. In or der tofind

a hostile work environment sexual harassment , you must find that plaintiff was harassed becaus e she is a woman. The harassing conduct may, but need n ot be sexual in nature. Rather, its defining chara cteristic is

that the harassment occurs because of the vi ctim's sex.

App. at 5276-79.

We conclude that the district court's hostile work environment charge, taken as a whole, properly appr ised the jury of the issues and law under the LAD. The c harge clearly and accurately set forth the four-prong tes t set forth in Lehmann. Moreover, the court's list of factors p rovided additional guidance to the jury for its considerati on of whether the requisite elements of liability had bee n established. Although this nonexhaustive list was l argely derived from the ABA Model Charge and Title VII cas elaw, we believe that the New Jersey Supreme Court wouldf ind many of these factors useful and relevant for delib erations

in a hostile work environment sexual harassment cla im under the LAD.15 See Lehmann, 626 A.2d at 452 ("In construing the terms of the LAD, this Court has fre quently looked to federal precedent governing Title VII . . . as a key source of interpretive authority." (citation and qu otation marks omitted)). As a result, we reject the ACPD's argument.16

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15. Because certain factors may or may not be relev ant in any given case, our conclusion is necessarily limited to the facts of this case. Moreover, we do not suggest that the New Jersey Sup reme Court would only look to the ABA Model Charge and Title VII cas elaw when fashioning a set of factors to guide the jury in its deliberat ions.

16. Because we conclude that the ACPD remains liabl e under the LAD,

we need not consider whether the district court's c harge misstated the

law under Title VII.

31We also find no merit in the ACPD's contention that one

of the factors referenced in the charge, the plaint iff's reasonable expectation upon entering the workplace, is inconsistent with Lehmann's requirement that the fi nder of fact consider workplace hostility "from the perspec tive of a reasonable woman." ACPD's Br. at 49 (quoting Lehman n, 626 A.2d at 457-58). In this case we do not see the harm from the shifting reference. Indeed, we fail to see how this distinction could aid the ACPD since, if anything, the "reasonable expectation upon entering the workplace " factor seems to give an employer extra leeway when a woman enters what she knows to be a traditionally male pr eserve, whereas the generalized reasonable woman standard i s less concerned with what a workplace has traditionally b een like and focuses on what a reasonable woman may rightful ly expect from her employers. Finally, we reject the A CPD's contention that the district court erred in failing to instruct the jury as to precisely how each of the factors bo re on the

issue of sexual harassment.

E. Faragher v. City of Boca Raton and Burlington

Industries v. Ellerth

After the initial oral argument on this appeal, the Supreme Court decided Faragher v. City of Boca Rato n and Burlington Industries v. Ellerth. These decisions substantially changed the law of Title VII on emplo yer liability. The ACPD contends that it is entitled to a new trial under the Ellerth/Faragher standards. For a variety of reasons, however, we conclude that the new structur e and taxonomy of Title VII liability makes no difference to the

outcome in this case. We first address the ACPD's c laim that it was entitled to an affirmative defense, and then discuss the effects of Ellerth and Faragher on the "quid pro quo" claims in the case.

1. The Affirmative Defense

The ACPD claims that the trial court's jury instruc tions were defective because the jury was instructed that the existence of an effective sexual harassment policy was merely a factor to be considered in imposing liabil ity and not an absolute defense. There are four problems wi th this

claim.

32First, Ellerth and Faragher do not, as the defendan ts

seem to assume, focus mechanically on the formal existence of a sexual harassment policy, allowing a n absolute defense to a hostile work environment clai m whenever the employer can point to an anti-harassme nt policy of some sort. The necessary elements of a de fense are "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavio r, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportuni ties provided by the employer or to avoid harm otherwise ." Ellerth, 118 S. Ct. at 2270. A stated policy should be "suitable to the employment circumstances." Id.

The proof at trial focused extensively on what the ACPD did and failed to do about the harassment--issuing written policies but not enforcing them, painting over offe nsive graffiti every few months only to see it go up agai n in minutes, failing to investigate sexual harassment a s it investigated and punished other forms of misconduct

. Although it diligently attempted to convince the ju ry that its policies and procedures protected it, the ACPD fail ed to make a colorable case that its policies met the Ellerth/Faragher standards. See Hurley, 933 F. Supp . at 419; cf. Payton v. New Jersey Turnpike Auth., 691 A .2d 321 (N.J. 1997) (holding that a slow remedial process o r one that leaves an employee exposed to harassment canno t be effective). In Faragher, in fact, the Court found i t unnecessary to remand for consideration of the newl y codified defense, since the record established that Boca Raton failed to disseminate its policies or monitor the acts of its employees, so that as a matter of law it cou ld not prevail on the defense. See Faragher, 118 S. Ct. at 2293; see also Booker v. Budget Rent-a-Car Sys., 17 F. Su pp. 2d 735 (M.D. Tenn. 1998) (rejecting the affirmative de fense on a summary judgment motion because the employer had

notice of incidents of discrimination but failed to act on it).

A similar analysis applies here. The district court commented extensively on the ACPD's failure to impl ement anti-harassment policies or to inquire into the har assing behavior of any of its employees. It was evident th at Madamba, a supervisor with the duty to stop harassm ent,

33was aware of much of the harassment, even that whic h he

did not himself inflict. The ACPD insists that ther e were five mechanisms that Hurley should have explored in full before suing: her direct supervisor, Internal Affairs, the Affirmative Action Officer, the Chief through his "open door po licy," and the union grievance procedure. See ACPD Letter, Jul y 16, 1998, at 5. However, there was extensive testimony at trial

about the ineffectiveness of these mechanisms. More over, Hurley had no obligation to try all these mechanism s, because her immediate supervisor, who was responsib le for preventing and redressing harassment pursuant to th e ACPD's own policy, was on notice of the harassment. An employer cannot "use its own policies to insulate i tself from liability by placing an increased burden on a compl ainant to provide notice beyond that required by law." Wil liamson v. City of Houston, 148 F.3d 462, 467 (5th Cir. 199 8).17

Second, the ACPD apparently misreads the jury instructions. The liability instructions first stat ed that the ACPD would be liable for acts within the scope of a supervisor's employment, which was to be judged by the time, place, and foreseeability of the harassing ac ts. See XXII App. at A5281-82. The instructions continued t hat the existence of "a widely-disseminated anti-harassment policy or a well-publicized and an effective formal or inf ormal complaint structure, training or monitoring mechani sms"

would be evidence that sexual discrimination was no t within the scope of employment. Id. at A5282.18 The n, the

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17. See also Distasio v. Perkin Elmer Corp., 157 F. 3d 55 (2d Cir. 1998) (holding that, if a direct supervisor who had the r esponsibility to stop harassment knew of and failed to act against it, th e plaintiff has no further obligation to bring it to the employer's at tention); Young v.
Bayer Corp., 123 F.3d 672, 675 (7th Cir. 1997) (finding i t sufficient for a plaintiff to give notice to someone who should reas onably be expected to stop the harassment or refer the complaint up the c hain of command to someone who can stop it).

18. The Ellerth/Faragher defense applies only to ha rassment occurring outside the scope of employment. See Ellerth, 118 S . Ct. at 2267. For harassment to fall within the scope of employment, the harasser must be furthering the employer's purposes or acting in wha t he believes to be his employer's interests. See id. at 2266. The Cour t did not discuss how such motivations were to be determined, and we need not today address

34instructions set forth the standard agency law on w hich

Faragher and Ellerth relied--the employer is not li able for acts outside the scope of employment unless (1) the employer intended the conduct; (2) the employer was negligent or reckless in that it knew or should hav e known about the supervisor's actions and failed to take p rompt and effective remedial measures; or (3) the supervi sor was purporting to act as a supervisor, he had authority to control the employee's working environment, and his actions were aided and abetted by the authority del egated by the employer. See XXII App. at A5282-83 (trackin g Lehmann, 626 A.2d at 461-62).

Next, the instructions listed factors to consider w hen determining whether the employer's negligence contr ibuted to a supervisor's sexual discrimination: the existe nce of a formal anti-harassment policy; the presence of effe ctive formal or informal complaint structures, training, and/or monitoring mechanisms; the extent to which the empl oyee used the existing complaint procedures; and whether the employer took prompt and effective remedial action in response to complaints. According to the instructio ns, these factors should be evaluated together. See id. at A5 283 (tracking Lehmann, 626 A.2d at 463). Finally, the instructions stated that the ACPD would be responsi ble for harassment by non-supervisory employees if it knew or should have known that such harassment was occurrin g and failed to take preventive or curative measures when it had reason to believe that harassment may have occu rred;

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whether a patently ineffective harassment policy mi ght communicate to male employees that harassment was an acceptable, e xpected means to interact with female officers. Rather, if the jury decided that the lack

of an effective harassment policy justified holding th e ACPD liable under a scope of employment theory, the same result would h ave been mandated under the Ellerth/Faragher standards for holding em ployers liable for negligence or for imposing vicarious liability when supervisory

harassment creates a hostile work environment. The overlap between the standards was made clear by the instructions on neg ligence, which we describe infra in text. Thus, although this section of the instructions would no longer be appropriate to describe the scop e of employment in a Title VII case, it did not mistakenly allow liabi lity to be imposed in

any circumstances in which an employer should properly be absolved.

35the jury was instructed to consider whether the ACP D took

"all reasonable steps necessary to address sexual

harassment." Id. at A5284.

The ACPD has failed to identify how these instructi ons conflict with Faragher and Ellerth, which relied on the same agency principles as Lehmann. Indeed the able trial judge quite presciently anticipated Faragher and Ellerth. The ACPD argues that the instructions allowed the jury to find it liable if the jury concluded that some factors o utweighed the existence of an effective sexual harassment pol icy. See ACPD Letter, July 16, 1998, at 8. The ACPD presumab ly means that the jury could have used the extent of t he harassment to discount the ACPD's anti-harassment p olicy, although the ACPD is not clear on this issue. Of co urse, under Faragher, the extent of the harassment would be helpful evidence of the actual effectiveness of a f ormal policy, which is a necessary element of the Faraghe r defense. But that is beside the point, as the ACPD has confused the part of the instructions that sets for th a tenfactor test for determining whether a hostile envir onment existed, see supra Section II.A.4, with the part of the instructions that dealt with the ACPD's liability a ssuming that the jury found a hostile environment existed, see XXII App. at A5282-84. If anything, the ACPD got to doub le-dip on its harassment policy, because the jury was told to

factor it into the initial hostile environment dete rmination and then to use it again when considering liability . See Payton, 691 A.2d at 327 (approving this dual use).

A third reason to reject the ACPD's contention is t hat Faragher and Ellerth establish that the defense of employer due care is an affirmative one. See Ellerth, 118 S. Ct. at 2270. Thus, the employer bears the burden of proof. The instructions given at trial put the burden on Hurle y to prove that the ACPD was liable for negligence despi te its harassment policy and other remedial measures. Any error, therefore, worked in favor of the ACPD and could no t justify

a new trial.

Finally, Faragher and Ellerth do not necessarily co ntrol this case, which was also brought under the New Jer sey LAD. Even if the jury instructions are not quite ri ght with respect to Faragher, there is no colorable argument that

36they misstated New Jersey law. For all these reason s, we

conclude that these recent additions to Title VII jurisprudence do not require us to reverse the judg ment of

the district court.

2. The Quid Pro Quo Instruction

Hurley's quid pro quo claim was based on Madamba's alleged sexual invitations to her. She testified th at when she complained about harassment to Madamba, he repl ied that women in the private sector avoided harassment because they "sleep with their bosses." When she at tempted to change the subject and commented on Madamba's apparent weight loss, he stated that he lost weight by "having sex a few times a day," and that women came to him "when they're ready." Hurley interpreted this e ntire

conversation as a solicitation for sex.

The dissent argues that Ellerth and Faragher requir e us to reverse because those cases held that there coul d be no quid pro quo claim as such if the plaintiff neither submitted to sexual demands nor suffered retaliatory action w hen she refused to submit. The jury instructions, however, required only that the jury find either that a supervisor co nditioned tangible job benefits on submission to unwelcome se xual conduct, or that a supervisor penalized Hurley for refusing to participate in such conduct. It is possible, tho ugh not certain, that such instructions could be read to co ver threats that were not acted upon. We agree with the dissent that Ellerth and Faragher largely eliminated the di stinction between hostile work environment claims and quid pr o quo claims, focusing instead on the presence or absence of tangible adverse employment actions. See Durham Lif e Ins. Co. v. Evans, ___ F.3d ___, 1999 U.S. App. LEXIS 58 7 (3d Cir. Jan. 22, 1999). However, we conclude that the judgment should nonetheless be upheld.

The dissent persuasively identifies the reasons tha t the quid pro quo claim was the least tenable of Hurley' s claims, at least under Faragher and Ellerth. 19 In fact, th e conduct

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19. We have no doubt that Madamba's suggestive rema rks could be interpreted as a threat, and we do not mean to sugg est that remarks of this sort cannot found a quid pro quo claim, though we agree with the

37of which she complained was part of the hostile wor k

environment she experienced, and this would necessa rily have been apparent to the jury.20 But in light of t he total record here, we are satisfied that no jury would ha ve found the defendants liable solely on the basis of the qu id pro quo instruction. Multiple sources--including physical e vidence --corroborated the most egregious examples of sexua l harassment, including the tampon incident and the obscene graffiti, see, e.g., infra n.5, while the o nly evidence of Madamba's suggestion came from Hurley's testimon y. To us, it is inconceivable that a jury would have beli eved her testimony on this one issue, concluded that the ACP D was vicariously liable for one advance, and discounted the other incidents, which were sufficiently pervasive to con situte a hostile environment. Juries may be unpredictable, b ut we are not willing to posit total illogic, which would be contrary to our faith in the jury system as a whole. We are thus persuaded that any error was harmless.

We addressed a similar issue in Murray v. United of Omaha Life Insurance Co., 145 F.3d 143 (3d Cir. 199 8):

We agree that the jury charge as given by th e district court did not conform to New Jersey law as w e predict it. Nonetheless, we will not reverse a judgm ent where

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dissent that the evidence of retaliation for refusa l to accede is

gossamer. Nor need we predict how New Jersey will react to Fa ragher and Ellerth. The LAD is a remedial statute, in some respects bro ader and more flexible than Title VII. See Lehmann, 626 A.2d at 4 52; id. at 460 (holding employers strictly liable for equitable damages and relief). This is so

even though New Jersey often looks to the federal system for interpretive authority. See id. at 452. We thus believe it quite possible that New Jersey might retain a quid pro quo cause of action as such even after Ellerth and Faragher. The District Court's instruct ions, as the dissent notes, see Dissent at 66, are consistent with Lehma nn. See Lehmann, 626 A.2d at 452; see also Pukowsky v. Caruso, 711 A .2d 398, 403 (N.J. Super. Ct. App. Div. 1998).

20. Madamba's alleged conduct is the kind of conduc t for which the ACPD could attempt to interpose its affirmative def ense, but, as we have already held, that defense would fail because the A CPD's dereliction was even worse than that in Faragher, in which the Cour t declined to offer the defendants an opportunity to make out the defen se on remand.

38"it is highly probable that the error did no t contribute

to the judgment," McQueeney v. Wilmington Tr ust Co., 779 F.2d 916, 924 (3d Cir. 1985), i.e., wher e the challenged error was harmless.

Id. at 156 (footnote omitted). An issue similar to that in this case arose in American Airlines, Inc. v. United Sta tes, 418 F.2d 180 (5th Cir. 1969), in which the District Cou rt instructed the jury that it could return a verdict for the plaintiff if it found negligence in any one or more of thirty particulars. Each was supported by substantial evid ence except one, and on that one count it was factually impossible that liability could appropriately be fo und. The

court found that "it is . . . inconceivable that in the mass of testimony so clearly establishing negligence in thirty other particulars this issue could have influenced the verdict against American." Id. at 195 (citing Fed. R. Civ. P. 61). Although there were fewer than thirty viable t heories in this case, the weight of evidence and argument on t he other theories of liability leads us to the same conclusi on here.

We concede the general correctness of the dissent's proposition that faulty instructions on which a gen eral verdict could have been based require reversal. The foundational case of Maryland v. Baldwin, 112 U.S. 490 (1884), addressed itself equally to faulty instruct ions and to erroneous admission of evidence, and announced that such errors require reversal. See id. at 493 ("If . . . upon any one issue error was committed, either in the admission of evidence or in the charge of the court, the verdict cannot be upheld . . . ."). It has long been acknowledged, ho wever, that Baldwin does not speak to the harmless error situation. See Asbill v. Housing Auth. of the Choct aw Nation, 726 F.2d 1499, 1504 (10th Cir. 1984) ("We note[Bald win] does not paint with as broad a brush as appears fro m the language quoted. As with all errors committed at tr ial, a litmus test for reversal is whether the appellant w as thereby unjustly prejudiced."). Evidentiary errors are subject to harmless error analysis, and the same is true for

errors in instruction. See id.

Given Federal Rule of Civil Procedure 61's command to disregard "any error" that does not affect "the sub stantial rights of the parties," and the authorities set for th in the

39margin,21 we do not believe that we are creating a new rule.

The cases cited by the dissent for the proposition that we must reverse are distinguishable because they deal with instances in which the record rendered it impossibl e to determine the basis for the jury's decision. We dis cuss them, too, in the margin.22 To the extent that the dissent is

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21. See also Pressley v. Haeger, 977 F.2d 295, 298 (7th Cir. 1992) (applying harmless error analysis to faulty instruc tions that, given the evidence, were unlikely to have influenced the jury ); Kern v. Levolor Lorentzen, Inc., 899 F.2d 772, 777 (9th Cir. 1990) (where the relevant facts were the same for all theories, the evidence and argument focused on a legally correct theory, and it was unlikely th at the incorrect theory influenced the jury, a verdict could be upheld desp ite one erroneous instruction); Kassel v. Gannett Co., 875 F.2d 935, 950 (1st Cir. 1989) (invoking harmless error rule for faulty instructio ns but rejecting it on the merits because of the evidence and arguments at trial); Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307, 1310 (10th Cir. 1 986) (finding that an improper instruction, identical to one rejected by the Supreme Court because it did not contain all the necessary elemen ts, did not mandate

reversal because there was "substantial evidence" s upporting the correct theory of liability, and holding harmless error ana lysis appropriate to jury instructions "when the erroneous instruction c ould not have changed the result of the case"); Square Liner 360, Inc. v. Chisum, 691 F.2d 362, 377 (8th Cir. 1982) (applying Baldwin wit h harmless error analysis); Horne v. Georgia S. & Fla. Ry. Co., 421 F.2d 975, 980 (5th Cir. 1970) (finding a charge, if erroneous, harmless bec ause the underlying facts so firmly supported the verdict on a proper c harge); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 837-38 (2d Cir. 1967) (applying similar reasoning when one theory was improperly su bmitted to the jury); 11 Wright et al., Federal Practice & Procedu re S 2886, at 467-70 ("Errors in instructions routinely are ignored if a motion for a directed verdict should have been granted, or if the erroneo us instruction went to an issue that is immaterial in light of the jury's verdict, or if it is otherwise apparent that the error could not have ch anged the result." (footnotes omitted)).

22. See Brokerage Concepts, Inc. v. U.S. Healthcare , Inc., 140 F.3d 494, 534 (3d Cir. 1998) (portion of instructions invited the jury to use impermissible factors, and, given the focus of the trial evidence, "such infection almost certainly occurred"); Wilburn v. M aritrans GP Inc., 139 F.3d 350, 361 (3d Cir. 1998) (jury could have based liability on incidents of alleged negligence for which the standard of car e was beyond common knowledge, and there was no expert testimony to gui de them as to those incidents); Avins v. White, 627 F.2d 637, 646 (3d C ir. 1980) (reversing a

40concerned about broad application of the harmless e rror

rule, we agree entirely, and emphasize that our dec ision is

founded on the extreme facts of this case. Because any error in the quid pro quo instruction could not by any stretch of the imagination change the verdict, we n eed not

reverse.

III. Punitive Damages

The ACPD argues that the district court erred by fa iling to instruct the jury that punitive damages could on ly be awarded against the ACPD "if there was `actual participation by upper management or willful indiff erence.' " ACPD's Br. at 12 (quoting Lehmann, 626 A.2d at 464) .23

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judgment based on the "distinct possibility" that t he jury imposed liability based on incidents of defamation that sho uld not have been submitted to the jury); cf. McKenna v. Pacific Rail Serv., 32 F.3d 820, 831-32 (3d Cir. 1994) (reversing judgment when an e rroneous portion of the jury instructions "more than likely" guided the jury's deliberations). Carden v. Westinghouse Electric Corp., 850 F.2d 996 (3d Cir. 1988), on which the dissent relies, concerned a situation in which the verdict could have been based on erroneously admitted "direct" ev idence of discrimination; here, the instructions did not requ ire the jury to look at evidence it should not have considered. Indeed, eve n Simko v. C & C Marine Maintenance Co., 594 F.2d 960 (3d Cir. 1979) , while setting forth the general rule that errors in instruction require reversal, also cited with approval Morrissey v. National Maritime Union, 544 F.2d 19, 26-27 (2d Cir. 1976), describing its holding as follows: "[T]he general rule . .

. must be followed unless it can be stated with confi dence that the same

verdict would have been returned even if the invali d claim had not been submitted to the jury." Simko, 594 F.2d at 967.

23. The ACPD raises two other arguments concerning the punitive damage award, but they need not detain us long. Fir st, the ACPD argues that plaintiff 's punitive damage award must be vac ated as a matter of law because "both public policy and the most reason able interpretation of the statutes [i.e., the Tort Claims Act and the LAD] support the conclusion that punitive damages should not be avai lable against a public entity under the [LAD]." ACPD's Br. at 20. H owever, we explicitly rejected this argument in Gares v. Willingboro Town ship, 90 F.3d 720 (3d Cir. 1996), and we are unaware of any developments that call this decision into question. Second, the ACPD contends t hat the punitive damage award must be vacated because the jury acted inconsistently

41Because the ACPD did not object to the district cou rt's

charge on this ground, we will review this claim fo r plain

error.

The ACPD asserts that our plain error analysis shou ld be guided by the New Jersey Appellate Division's decis ion in Maiorino v. Schering-Plough Corp., 695 A.2d 353 (N. J. Super. Ct. App. Div.), certif. denied, 704 A.2d 19 (N.J. 1997). In Maiorino, the court observed that"a jury charge on punitive damages must include the instruction th at upper management has to have . . . participated in or shown willful indifference to the situation." Id. a t 368-69 (emphasis added) (citing Rendine v. Pantzer, 661 A. 2d 1202 (N.J. 1995)). In fact, the court held that this con cept is so

essential to a fair trial that "the failure to char ge the jury with the necessity of finding upper management's involvement to justify a punitive award is such a fundamental flaw that [an appellate court] must rec ognize it as a matter of plain error." Id. at 368 (citatio n omitted). While the Maiorino decision provides persuasive aut hority regarding the substantive correctness of a jury cha rge in a diversity case such as this, it is well established that the question of whether error is plain is one of federa l law. See Hinds v. General Motors Corp., 988 F.2d 1039, 1046 (10th Cir. 1993) (discussing harmless error); see also Be ardshall v. Minuteman Press Int'l, Inc., 664 F.2d 23, 27 (3d Cir. 1981) ("[T]he failure to object to jury instruction s and the consequences thereof are procedural and are to be governed by federal law."). Accordingly, we must lo ok to this

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when it imposed punitive damage liability on the AC PD but not on Madamba, the principal upper manager who was involv ed. This argument is also without merit. Punitive damages ar e awarded to deter and punish, and the jury could easily have conclude d that the ACPD should pay punitive damages because both its potent ial for harm and its responsibility for the widespread harassment were f ar greater than Madamba's alone. Contrary to the ACPD's portrait of the facts, the testimony indicated that Madamba was far from a lon e bad apple poisoning the ACPD. Moreover, the district court pr operly instructed the jury that an award of punitive damages was purely d iscretionary. We need not inquire further about why the jury chose t o exercise its

discretion in this manner.

42court's plain error jurisprudence when considering the

ACPD's appeal with respect to the punitive damage a ward.

We have repeatedly stated that, "[i]n the absence o f a party's preservation of an assigned error for appea l, we review only for plain error, and our power to rever se is discretionary." Chemical Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 89 F.3d 976, 993 (3d Cir.) (quotin g Fashauer v. New Jersey Transit Rail Operations, Inc ., 57 F.3d 1269, 1289 (3d Cir. 1995)), cert. denied sub n om. Jackson v. Chemical Leaman Tank Lines, Inc., 117 S. Ct. 485 (1996). However, we should exercise our discret ion sparingly so that Rule 51 and the beneficial policy goals it serves are not emasculated. See Chemical Leaman, 89 F.3d at 993-94; McAdam v. Dean Witter Reynolds, Inc., 89 6 F.2d 750, 770 n.31 (3d Cir. 1990). "Thus, we should noti ce the error only if [it] is fundamental and highly prejud icial or if the instructions are such that the jury is without adequate guidance on a fundamental question and our failure to consider the error would result in a miscarriage of justice." Fashauer, 57 F.3d at 1289 (quoting Bereda v. Picker ing Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir. 1 989)) (alteration in original) (internal quotation marks omitted).

In the present matter, there can be no doubt that t he district court's charge was erroneous. The New Jers ey Supreme Court has instructed that two distinct cond itions must be satisfied before punitive damages may be aw arded under the LAD. First, "punitive damages can only be assessed against an employer if there was `actual participation by upper management or willful indiff erence.' " Maiorino, 695 A.2d at 368 (emphasis added) (quoting Lehmann, 626 A.2d at 464); see also Maczik v. Gilfo rd Park Yacht Club, 638 A.2d 1322, 1326 (N.J. Super. Ct. Ap p. Div. 1994). Second, a plaintiff must also set forth "pro of that the offending conduct [is] `especially egregious.' " Re ndine, 661 A.2d at 1215 (quoting Leimgruber v. Claridge Assocs ., Ltd., 375 A.2d 652 (N.J. 1977)). Conduct may be sufficien tly egregious if it is "intentional, malicious, and`evi l-minded.' " Gares v. Willingboro Twp., 90 F.3d 720, 728 (3d Cir . 1996) (quoting Rendine, 661 A.2d at 1215); see also Rendi ne, 661 A.2d at 1215 ("Our cases indicate that the requirem ent [of willfulness or wantonness] may be satisfied upon a showing

43that there has been a deliberate act or omission wi th

knowledge of a high degree of probability of harm a nd reckless indifference to consequences." (citation a nd internal quotation marks omitted)).

By contrast, the district court's punitive damage c harge clearly failed to instruct the jury on the upper ma nagement requirement:

If you find that plaintiff has established that either the Atlantic City Police Department or Henry Madamba is responsible for having engaged in acts of sexual discrimination against the plaintiff, you mu st consider whether to award punitive damages. You are n ot to consider the issue of punitive damages again st

Nicholas Rifice.

. . . .

It is not sufficient to award punitive dama ges solely on the basis that a defendant has engaged in acts of

sexual discrimination.

You may award plaintiff punitive damages so lely on the basis that a particular defendant malici ously or wantonly violated plaintiff's rights, and an act is done maliciously if it is prompted by ill will or spite toward the injured person, an evil-minded act. An a ct is done wantonly if it is done with a reckless, call ous or deliberate disregard of the injured person's rights. The plaintiff must prove by a preponderance of t he evidence that the defendant acted maliciously or want only.

. . . .

In making your decision you should consider the purpose of punitive damages. You may conside r whether the punitive damages are appropriate in order to punish the defendant adequately, whether punitive damages are necessary to prevent the defenda nt from committing these acts again, or whether puni tive damages are likely to prevent others from co mmitting

similar acts.

If you find the plaintiff is entitled to an award of punitive damages, the court will hold a furt her proceeding to determine the amount of that a ward.

44App. at 5287-89 (emphasis added).

We conclude that the district court committed plain error when it failed to instruct the jury that punitive d amages could only be assessed if there was "actual partici pation by upper management or willful indifference." The cour t's instructions failed to provide proper guidance for the jury on a fundamental question. Moreover, our failure to consider the error would result in a miscarriage of justice. There was also serious disagreement at oral argumen t and in the parties' briefs about whether Madamba was ac tually part of upper management during the relevant times. 24 Accordingly, we will vacate the punitive damage awa rd against the ACPD.

IV. The Individual Defendants

A. Madamba

1. Assorted Challenges

Madamba raises a number of arguments on appeal. Fir st, he contends that he was entitled to judgment as a m atter of law because the jury's finding of individual lia bility under N.J.S.A. 10:5-12(a) was against the weight of the e vidence. Implicit in this argument is Madamba's assumption t hat the jury returned a verdict of individual liability under N.J.S.A. 10:5-12(a). We do not agree with this assu mption. The district court's charge in this case clearly st ated that the individual defendants were liable, if at all, f or aiding and abetting the employer's violation of the Act.

Hurley argues that supervisors may be individually liable as employers under the LAD. The New Jersey courts h ave not specifically addressed the issue. The dissent m akes a cogent argument for individual liability, and it is clear that reasonable people can disagree on this point. But t he New

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24. On remand, the district court must determine wh ether Madamba was part of upper management. The ACPD claims that Madamba was a captain, along with numerous others with that rank. Although Madamba clearly was a supervisor of the personnel under his command, the ACPD contends that he did not establish policy and was n ot at the top tier of the department so as to be part of upper management . If a factual dispute should arise, however, the issue would be r eserved for the jury.

45Jersey decisions cited by the dissent, see Dissent at 74-77,

did not rule on individual supervisory liability, a nd hence we do not find them controlling. Nor do we think th e statutory text offers guidance. While an "employer" may be "one or more individuals" under N.J.S.A. 10:5-5(a), that does not necessarily mean that supervisors, themsel ves employed by individuals or corporations, are "emplo yers." Title VII defines "employer" to include "a person . . . who has fifteen or more employees" or "any agent" of su ch a person, 42 U.S.C. S 2000e(b), and it could be subje cted to the same analysis the dissent uses to find individu al liability possible under LAD.

We also note that imposing direct liability on supe rvisors, who are likely to be substantially judgment-proof, will not significantly add to the force of anti-discriminati on law, which already gives employers incentives to ban discrimination and monitor supervisors' activities. We think that there is insufficient reason to predict that N ew Jersey would diverge from the federal scheme on this point . See, e.g., Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1077-78 (3d Cir. 1996). In sum, while the poi nt is close, as well as unclear, we are simply not willin g to predict that New Jersey would include supervisors i n the statutory definition of "employer."25

Second, Madamba joins the ACPD's evidentiary challenges and its attack on the hostile work envir onment charge, which we have already rejected. Third, he o bjects that the court permitted the jury to find liability against Madamba on four separate theories of liability when they should have only considered liability for hostile w ork environment sexual harassment. We do not agree, bec ause the various theories of liability were properly sub mitted to the jury. There was sufficient evidence on all theo ries to go to the jury, and the instructions clearly indicated that the mere presentation of a possible theory to the jury did not mean that any defendant was liable on that theory, or on any theory. We reiterate that the instructions indi cated that

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25. Trends may change, however, and a panel looking at this issue a year from now might see New Jersey pursuing a diffe rent course on supervisory liability through section 10:5-5(a).

46the individual defendants were liable, if at all, f or aiding

and abetting the employer's violation of the Act. 2 6

Fourth, Madamba argues that the court's compensator y damages charge failed to instruct the jury "that it cannot award damages for any conduct that plaintiff was no t subjected to, aware of, or with respect to Madamba, which occurred prior to 1990." Madamba Br. at 49-50. But the relevant section of the instructions adequately lim ited Madamba's exposure by setting forth the time limits on recovery and the purposes for which the jury could use evidence of acts not directed at Hurley, even thoug h it did not specifically mention Madamba at that point. See supra Section II.B.

2. Aiding and Abetting

Finally, Madamba contends that the court's aiding a nd abetting instruction permitted the jury to impose i ndividual liability under an erroneous standard. The LAD prov ides that it is unlawful for "any person, whether an emp loyer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this a ct, or to attempt to do so." N.J.S.A. 10:5-12(e). In our deci sion in Failla v. City of Passaic, issued after the verdict in this case, we held that individual supervisors may be li able for aiding and abetting under the LAD. In reaching this

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26. Madamba particularly assails the availability o f a quid pro quo instruction, which we discuss in greater detail sup ra Section II.E.2. The evidence to support Hurley's quid pro quo theory wa s a conversation she had with Madamba in which she complained about hara ssment and he responded that women in the private sector protect themselves from harassment by "sleeping with" their bosses and that women approached Madamba for sex "when they're ready." After she mad e no response to these suggestive comments, he allegedly took furthe r discriminatory action against her by transferring her to a less de sirable position. However, as we suggested above, this is less a quid pro quo case than a hostile environment case, inter alia because it s eems more plausible that the transfer, if retaliatory, was based on Hur ley's memo alleging harassment and not on her rejection of Madamba's pu tative advances. At all events, as discussed below in Section IV.A.2, w e conclude that a reasonable jury could impose aiding and abetting li ability on Madamba

for his substantial contribution to the hostile wor k environment; his putative advances could be evidence of aiding and a betting.

47conclusion, we predicted that the New Jersey Suprem e

Court would follow the Restatement (Second) of Tort s S 876(b) to define aiding and abetting liability un der the LAD. See Failla, 146 F.3d at 158. That section prov ides "that a person is liable for harm resulting to a th ird person
from the conduct of another when he `knows that the other's conduct constitutes a breach of duty and gi ves substantial assistance or encouragement to the othe r so to conduct himself . . . .' " Id. (quoting Restatement (Second) of Torts S 876(b)). We also predicted that, under N ew Jersey law, "inaction can form the basis of aiding and abe tting liability if it rises to the level of providing sub stantial assistance or encouragement." Id. at 158 n.11 (citi ng Dici v. Pennsylvania, 91 F.3d 542, 553 (3d Cir. 1996)).

While we have rejected a requirement that an indivi dual and an employer share the same discriminatory inten t in order to find aiding and abetting liability, see Fa illa, 146 F.3d at 157, we have not fully elucidated the princ iples that might allow a harassing supervisor to be individual ly liable for aiding and abetting the actionable conduct of h is employer, when the challenged conduct is failing to stop the supervisor's own harassment. Cf. United States v. S ain, 141 F.3d 463, 474 (3d Cir. 1998) (finding that a person can aid and abet a corporation that he or she fully owns an d controls). This is a somewhat awkward theory of lia bility. We believe, however, that it can be explained in th is manner: A supervisor, under New Jersey law, has a d uty to act against harassment. See Taylor, 706 A.2d at 691 . This duty can be violated by deliberate indifference or affirmatively harassing acts. When a supervisorflou ts this duty, he subjects himself and his employer to liabi lity. Cf. Judson v. Peoples Bank & Trust Co., 134 A.2d 761 (N .J. 1957) (holding that both agent and principal will b e liable when the agent acts within the scope of his employm ent but for his own purposes).

The ACPD's wrongful conduct in this case was inacti on -- its tolerance of sexual harassment. The jury had ev idence before it that Madamba assisted this tolerance by t olerating and even encouraging the harassment. As part of the chain of command that Hurley was expected to follow, he controlled her access to the most effective potenti al

48solutions to the harassment. Instead of taking step s to

assist her, he told her that she should stop compla ining or it would only get worse; he suggested that sleeping with him might protect her; he laughed at the drawings a nd graffiti about her; and he demeaned her as an offic er on a daily basis. When she finally went over his head an d requested a transfer because of the harassment, he gave his superior a memo accusing her of lying. We are a lso mindful of the moral authority of a police captain over his officers. When Madamba laughed at Hurley's discomfo rt and denigrated her, his officers could easily learn the lesson that harassing women was part of being an AC PD

officer.

Madamba arguably failed to stop the harassment beca use he wanted it to continue. But, as Failla held, ther e is no requirement of "shared intent" between the primary wrongdoer and the aider and abettor. If Madamba's m alice substantially assisted the ACPD's inaction, then he is an aider and abettor despite any difference in state o f mind, assuming that the ACPD can be said to have a mental state. His liability can be grounded in his failure to stop the harassment, which included both active and passive
components.

Because we conclude that Madamba could be liable fo r aiding and abetting, we must decide whether the jur y instructions adequately set forth the applicable la w. Based on Restatement S 876(b), courts have determined tha t the tort of aiding and abetting involves three elements : "(1) the party whom the defendant aids must perform a wrongf ul act that causes an injury; (2) the defendant must b e generally aware of his role as part of an overall i llegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation." Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983); see also In re Temporomandibu lar Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1495 (8th Cir. 1997); Metge v. Baehler, 762 F.2d 62 1, 624 (8th Cir. 1985).27

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27. To determine whether a defendant provided "subs tantial assistance," the comments to section 876 of the Restatement prov ide a list of five

49The district court provided the following charge fo r aiding

and abetting:

[I]ndividual defendants . . . may be held li able only for their individual, affirmative wrongful acts. They may

not be held liable for the conduct of others , nor for their inaction or delay in responding to suc h conduct. An individual defendant may be held liable, however, if he aids, abets, incites, compels or coerces another person's unlawful acts of discrimination.

. . . .

Aid is defined as meaning to assist, suppor t or supplement the efforts of another. Abet is d efined as meaning to encourage, counsel, incite or ins tigate the

commission of unlawful conduct.

In order the [sic] aid or abet another to c ommit an unlawful act, it is necessary that the defen dant willfully and knowingly associate himself in some way with the unlawful act, and that he willfully and knowingly seek by some act to make the unlaw ful act

succeed.

App. at 5284, 5314.

Although the district court's charge is compatible in some respects with the substance of section 876(b), the court misstates the law in two crucial respects: First, t he charge does not allow for liability based on inaction. To be sure, Madamba can hardly claim he was prejudiced by this particular omission, because the jury concluded tha t he committed affirmative, harassing conduct. But the instructions also allowed the jury to impose liabil ity for mere assistance, rather than substantial assistance . This was incorrect. Moreover, we cannot conclude that it is highly probable that the absence of a substantial a ssistance

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factors: "the nature of the act encouraged, the amo unt of assistance given by the defendant, his presence or absence at the time of the tort,

his relation to the other and his state of mind." R estatement (Second) of Torts S 876(b) cmt. d. (1979). Additionally, the co urt in Halberstam provided a sixth factor, the duration of the assist ance provided. See Halberstam, 705 F.2d at 484.

50requirement did not affect the jury's verdict. See

McQueeney, 779 F.2d at 924. Accordingly, we must va cate the judgment against Madamba and order a new trial. 28

B. Rifice

Hurley argues in her cross-appeal that the district court's aiding and abetting charge misstated the law under the LAD by requiring a finding of affirmative sexual ha rassment before Rifice could be found individually liable. S he also argues that the district court erred by striking he r punitive damage claim against Rifice. We agree.

As noted above, the district court's aiding and abe tting charge provided that the "individual defendants suc h as Nicholas Rifice and Henry Madamba . . . may only be held liable for their individual, affirmative wrongful a cts." XXII App. at 5284. However, in Failla, we expressly reje cted this

view and concluded that "inaction can form the basi s of aiding and abetting liability if it rises to the le vel of providing substantial assistance or encouragement." Failla, 146 F.3d at 158 n.11. Accordingly, the district cou rt's charge misstated the law under the LAD. The distric t court noted that the charge might well have determined th e jury's verdict. See Hurley, 933 F. Supp. at 417-18.

The evidence against Rifice mainly concerned his awareness of and apparent indifference to the haras sment. Rifice testified that he did nothing to stop the ha rassment because the harassers should already have known bet ter

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28. Madamba additionally argues that the jury instr uctions were flawed because they covered aiding and abetting "another p erson's unlawful acts" and then, when the jury inquired further, the court stated that the defendant had to "willfully and knowingly associate himself with the unlawful act." Madamba Letter at 8. He argues that this is erroneous because the instruction should have required associ ation with the employer and not the act. This is a misreading of F ailla, which rejected a shared intent requirement. Moreover, Madamba was associated with his employer as a matter of course. Finally, the Ne w Jersey Appellate Division case of Baliko v. Stecker, 645 A.2d 1218 ( N.J. Super. Ct. App. Div. 1994), undermines Madamba's position. Baliko h eld that aiding and abetting liability could exist when one union membe r aided other union

members and the sum total of acts was sufficient to cause the union to

be liable.

51and he did not believe that he could do anything ab out it.

This kind of knowing inaction by a high-level emplo yee with responsibility over Hurley and her harassers could, we think, rise to the level of substantial assistance. We will therefore vacate the judgment in favor of Rifice an d the district court's order striking plaintiff's punitiv e damage claim against Rifice.

C. Mooney

Hurley next argues that the district court erred by granting summary judgment in favor of defendant Moo ney.29 Mooney argued, and the district court agreed, that he was entitled to summary judgment on Hurley's LAD claim because, as a non-supervisory co-employee, he was n ot an "employer" for purposes of N.J. Stat. Ann.S 10:5-5( e).30 See Hurley v. Atlantic City Police Dept., 1995 WL 85447 8, at *10 (D.N.J. Aug. 4, 1995). The court reached this concl usion, in part, because "non-supervisory co-employees cannot be held liable under Title VII, and New Jersey courts have often looked to that statute to resolve questions u nder the NJLAD." Id. (citing Lehmann, 626 A.2d at 452). Alth ough Mooney may have had considerable unofficial power because of his well-known promotion prospects and h ighranking relatives, he was not an "employer."

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29. We review the district court's decision grantin g summary judgment de novo, and we apply the same test the district co urt should have applied in the first instance. See Olson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996); Helen L. v. DiDario, 46 F.3d 325, 329 (3d Cir. 1995). We must determine, therefore, whether t he record, when viewed in the light most favorable to Hurley, shows that there is no genuine issue of material fact and that Mooney was entitled to summary judgment as a matter of law. See, e.g., Celotex Cor p. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249- 50 (1986).

30. The Act provides that an employer "includes all persons as defined in subsection a. of this section unless otherwise spec ifically exempt under another section of this act, and includes the State , any political or

civil subdivision thereof, and all public officers, agenc ies, boards or bodies." N.J. Stat. Ann. S 10:5-5(e). Subsection (a) provide s that the term "[p]erson includes one or more individuals, partner ships, associations, organizations, labor organizations, corporations, l egal representatives, trustees, trustees in bankruptcy, receivers, and fi duciaries." N.J. Stat. Ann. S 10:5-5(a).

52Hurley argues that S 10:5-5(e) is not relevant beca use

Mooney was individually liable under the LAD as an aider and abettor. We predict that, under New Jersey law, a nonsupervisory employee cannot be held liable as an aider

and abettor for his own affirmative acts of harassm ent, because such affirmative acts do not substantially assist the employer in its wrong, which is its failure to prevent and redress harassment by individual employees. 31 Rather, a nonsupervisory employee's harassment takes advant age of the employer's wrongful conduct; it is the emplo yee who seems to be "aided and abetted" by the employer.32 A supervisor, by contrast, may be liable as an aider and abettor for active harassment or knowing and willfu l inaction, because in either case the supervisor vio lates his or her duty as a supervisor to prevent and halt har assment.33

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31. The dissent argues that the employer's wrong ca n also consist of the wrongs of its supervisors who commit willful harass ment. This is a thorny question of agency law; usually, the employe r is said to be vicariously liable for certain acts of its agents, as in Ellerth and Faragher, and directly liable for its own negligence, if any, in allowing its agents

to behave badly. Query whether vicarious liability mea ns that a person who aids and abets an agent also aids and abets the pri ncipal? We need not resolve this nice question, however, because the di ssent's argument presupposes that Madamba can be held individually l iable as a harasser under N.J.S.A. S 10:5-5(a), a proposition we have a lready predicted that New Jersey courts would reject. Moreover, if the cl aim were that Mooney substantially assisted Madamba's harassment, no rea sonable jury could find that Mooney's conduct rose to the level of sub stantial assistance based only on the two incidents recited by the diss ent.

32. Mooney claims that a nonsupervisor cannot aid a nd abet because only supervisors can create liability for an employ er. As cases imposing liability for coworker harassment demonstrate, that statement of the law is erroneous. We also note that, under the LAD, "an y person" may aid and abet; no ability to bind the employer is necess ary. New Jersey may ultimately decide, contrary to our prediction, that harassment by a nonsupervisory employee can constitute aiding and a betting, in which case we would of course follow its interpretation o f state law.

33. We note that the claims against the individual defendants are largely symbolic. Hurley's monetary recovery will come from the ACPD, and in practical terms the liability of the individual def endants is not that significant.

53