In Ilda Aguas v. State of New Jersey (072467), the New Jersey Supreme Court held: For claims alleging vicarious liability for supervisory sexual harassment under Restatement § 219(2)(d), the Court adopts as the governing standard the test set forth by the United States Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). The employer in a hostile work environment sexual harassment case may assert as an affirmative defense that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” provided that the employer has not taken an adverse tangible employment action against the plaintiff employee.

This holding raises the bar for plaintiffs seeking to impose vicarious liability upon an employer for the conduct of a supervisor.