A law review article published by Professor Susan Bisom-Rapp was cited in February 2015 by the New Jersey Supreme Court, the state’s highest appellate court. The case, Aguas v. State of New Jersey, involved allegations by a corrections officer that she was sexually harassed by her supervisor. Professor Bisom-Rapp’s article was referenced by the dissenting justices in an opinion authored by Justice Barry T. Albin.
The central issue in the case was whether in a claim of hostile environment harassment, where no tangible action is taken against the employee, an employer can assert an affirmative defense to vicarious liability by showing it 1) exercised reasonable care to prevent and correct sexual harassment, and 2) the employee failed to avail herself of preventive or corrective opportunities, such as those provided by a sexual harassment policy and grievance procedure.
“This affirmative defense,” explained Professor Bisom-Rapp, “was created by the U.S. Supreme Court in its Ellerth and Faragher opinions, companion cases decided in 1998.” New Jersey, however, until last February, had not expressly embraced the defense. Instead, in a series of decisions interpreting the state’s Law Against Discrimination (LAD), the New Jersey Supreme Court seemed to impose strict liability on employers for hostile environment harassment perpetrated by their supervisors. The Aguas case changes the legal doctrine, and New Jersey now provides an affirmative defense to employers attempting to avoid vicarious liability.
“Many academic commentators have been critical of the Ellerth/Faragher affirmative defense, arguing that it allows employers to prevail in hostile environment cases by taking steps that are purely symbolic rather than substantive,” said Professor Bisom-Rapp. In other words, employers, under the defense, need only promulgate a sexual harassment policy and grievance procedure rather than actually providing a working environment free from harassment. Professor Bisom-Rapp’s scholarly work was among the first to make such arguments.
Justice Albin cited Professor Bisom-Rapp’s 1999 article Bulletproofing the Workplace: Symbol and Substance in Employment Discrimination Law Practice for the proposition that “[t]he Ellerth/Faragher standard…is not the optimal method for discouraging sexual harassment in the workplace.” “It really is a thrill,” Professor Bisom-Rapp noted, “to see one’s work have an impact on the case law. Even though I was cited by the dissent rather than the majority, the majority took great pains to clarify that ‘an employer that implements an ineffective anti-harassment policy, or fails to enforce its policy, may not assert the affirmative defense.’” In this way, the majority sought to refute the charge of the dissent that it was embracing a form over substance approach to eradicating harassment.