EMPLOYER LIABILITY FOR UNREPORTED HARASSMENT: WHAT YOU NEED TO KNOW
When harassment goes unreported, the legal and business consequences for employers in New Jersey can be substantial. Under the state’s New Jersey Law Against Discrimination (NJLAD), an employer can be liable not only for actions it knew about but also for conduct it should have known. In the landmark decision Aguas v. State of New Jersey, the New Jersey Supreme Court held that an employer may escape vicarious liability only if it exercised reasonable care to prevent and correct harassment, and the employee unreasonably failed to use preventive or corrective opportunities. When complaints are unreported, employers lose the ability to rely on that defence.
A strong program includes interactive training for all employees, specific modules for supervisors and managers, and measurable participation and completion records. It also includes regular refreshers and documentation showing that training was provided, which may help employers assert a defence in a harassment claim.
"IGNORANCE IS NOT A DEFENCE WHEN LIABILITY LOOMS."
From a practical standpoint, liability increases when employers fail to provide trained complaint mechanisms, ignore patterns of misconduct, or allow supervisors to continue unchecked. Even anonymous complaints or third-party observations may trigger employer knowledge. Courts in New Jersey will look at whether the employer had a policy, whether employees knew how to report, and whether prompt corrective action followed. For employers, the goal is clear: establish a culture of openness, clear reporting channels, consistent documentation, and prompt investigation and remedial action. The absence of reporting is not neutral it increases risk.
