A critical mistake for any employer investigating a sexual harassment or other workplace discrimination claim is to select the wrong investigator. If the employee lacks confidence that the investigator will impartially, expeditiously and thoroughly investigate the complaint, he or she may be deemed to have reasonably failed to utilize the employer’s complaint mechanism. This is significant because our Supreme Court in Aguas v. State, 220 N.J. 494, 523-24 (2015), adopted the affirmative defense to sexual harassment claims articulated by the United States Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Specifically, if no tangible action has been taken against a plaintiff, such as a demotion, improper transfer or termination, the defendant employer may assert the two-pronged affirmative defense by proving by a preponderance of the evidence that: (1) the employer exercised reasonable care to prevent and to promptly correct sexually harassing behavior; and (2) that the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Aguas v. State, citing Faragher, supra, 524 U.S. at 807; Ellerth, supra, 524 U.S. at 746.