This year marks the 25th anniversary of the New Jersey Supreme Court’s decision in Lehmann v. Toys R Us, 132 N.J. 587 (1993), which held that the New Jersey Law Against Discrimination (NJLAD) prohibits “sexual harassment of women by men, men by women, men by men, and women by women … and bars both heterosexual and homosexual harassment.” Id. at 604. The “paramount objective” the Supreme Court identified in Lehmann was “the prevention of sexual harassment.” Aguas v. State, 220 N.J. 494, 522 (2015). As evidenced by the #MeToo movement and almost daily reports of abuse by high profile figures, sexual harassment remains an ongoing challenge for employees and employers. This Valentine’s Day, unwanted expressions of “love,” gag gifts that have sexual overtones, and discussions of romantic Valentine’s celebrations may be particularly dangerous. While relationships do have a place in business, it’s best to keep them strictly professional.

Every employer should use the current heightened awareness to reinforce its commitment to prevention of sexual harassment in the workplace and reexamine its policies and procedures to determine whether they provide an effective means to encourage and address sexual harassment allegations. The Supreme Court has provided employers with a strong incentive to take “meaningful and effective” steps to prevent and correct hostile environment sexual harassment in the workplace—an affirmative defense to liability where the harassment that does not culminate in a “tangible employment action, such as discharge, demotion or undesirable reassignment.” Id. at 522-23 (internal quotation marks omitted). For an employer to qualify for the defense, there must be an “unequivocal commitment from the top that [the employer’s opposition to sexual harassment] is not just words[,] but backed up by consistent practice.” Id. at 522 (quoting Lehmann, 132 N.J. at 626). It is incumbent on the employer “to unequivocally warn its workforce that sexual harassment will not be tolerated, to provide consistent training, [] to strictly enforce its policy,” and “to provide ‘meaningful and effective policies and procedures for employees to use in response to harassment.’” Id. at 522-23. “An employer that implements an ineffective anti-harassment policy, or fails to enforce its policy, may not assert the affirmative defense.” Id. at 523.