Full opinion text
OPINION OF THE COURT BECKER, Chief Judge. This is an appeal by defendants Henry Madamba and the Atlantic City Police Department (ACPD) from an amended judgment entered upon a jury’s determination that Madamba discriminated against plaintiff Donna Hurley on the basis of her sex in violation of the New Jersey Law Against Discrimination (LAD), N.J. Stat. Ann. 10:5-1 et seq., and that the ACPD discriminated against her on the basis of her sex in violation of the LAD and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. Donna Hurley cross-appeals from an amended judgment entered upon the jury’s determination that defendant Nicholas Rifice did not discriminate against her in violation of the LAD. She also cross-appeals from the district court’s order granting defendant John Mooney’s motion for summary judgment and the district court’s order denying her motions for prejudgment interest and an additur and granting her motion for attorney’s fees subject to a reduced hourly rate. In addition, plaintiff Patrick Hurley appeals from the district court’s order granting defendants’ motion for summary judgment on his loss of consortium claim. Because the harassing conduct tolerated by the ACPD was longstanding and egregious, and because the trial court did not commit reversible error in its evidentiary decisions or its jury instructions, we will affirm the amended judgment insofar as it imposes liability and compensatory damages on the ACPD. However, because the punitive damages instructions did not require actual participation by upper management or willful indifference as required by New Jersey law, we will vacate the amended judgment to the extent it imposes punitive damages against the ACPD and order a new trial on that issue. Our l'ecent decision in Failla v. City of Passaic, 146 F.3d 149 (3d Cir.1998), set forth our understanding of liability for aiding and abetting under the New Jersey LAD. In light of Failla, it is evident that the jury instructions on aiding and abetting erred in two critical respects. We will therefore reverse the amended judgment entered against Madamba because the instructions failed to require a finding that Madamba substantially assisted the harassment. We will also vacate the judgment entered in favor of Rifiee because the instructions wrongly directed the jury to absolve Rifiee unless he took affirmative harassing acts. However, we will affirm the district court’s order granting Mooney’s motion for summary judgment because, as we understand New Jersey law, he could not, as a nonsupervisory employee, be liable for aiding and abetting the ACPD’s failure to prevent and redress harassment even if he affirmatively harassed Donna Hurley. We will also affirm the district court’s order denying plaintiff’s motions for prejudgment interest and an additur and granting plaintiffs motion for attorney’s fees subject to a reduced hourly rate. I. Facts and Procedural History Plaintiff Donna Hurley has been an officer with the ACPD since February of 1978. She joined the force shortly after becoming the first female graduate of the Atlantic City Police Academy. Her husband, plaintiff Patrick Hurley, is also an officer with the ACPD. For purposes of clarity, we will refer to Donna Hurley as “Hurley,” to Patrick Hurley as “Mr. Hurley,” and to Mrs. and Mr. Hurley collectively as the “Hurleys” or “plaintiffs.” The Hurleys met while training at the Police Academy and married in 1980. Hurley alleges that she was subjected to sexual harassment as early as her training at the Police Academy in the late 1970s. In 1981 her then-supervisor, Sergeant Walter Reay, harassed her by making sexually derogatory comments about her hygiene during roll call, disturbed her while she was changing in the drill room, spoke to her in condescending tones during radio transmissions, and held her to stricter standards than male officers. During that year, fellow officers allegedly referred to Hurley as “the cunt” and placed a tampon and a copy of Hustler magazine in her squad car. Despite these and other obstacles, Hurley was promoted in November of 1987 and became the first female sergeant at the ACPD. Although her title changed as a result of this promotion, Hurley claims that her assignments continued to be menial and provided no useful experience. At one point, for example, Hurley was assigned to the Juvenile Truancy Task Force, where her job was to keep statistics on juvenile truants and where, although a sergeant, she supervised no one. The ACPD divides its officers into three shifts: 8:00 a.m. to 4:00 p.m., or “Alpha Platoon”; 4:00 p.m. to 12:00 midnight, or “Bravo Platoon”; and midnight to 8:00 a.m., or “Charlie Platoon.” After working approximately two years as a sergeant on Alpha Platoon, Hurley was transferred in January 1990 to desk sergeant of Charlie Platoon, where she came under the direct command of defendant Captain Henry Madamba. The events at the core of this case occurred while Hurley worked in Charlie Platoon. During her first week on this assignment, Madamba allegedly told plaintiff that upper management sent a woman to his unit to “break his balls,” and that he “did not expect [her] to be here on this shift very long.” App. at 2749-50. Madamba also allegedly advised Hurley to request a hardship transfer out of Charlie Platoon and gave a male officer with less seniority a more favorable schedule. Hurley testified that she was sexually harassed throughout her entire tour on Charlie Platoon by her.superiors and her coworkers. This harassment included “keying out” her radio transmissions, demeaning comments by Madamba during roll call, and exclusion from sergeants’ meetings. In addition, officers placed a sanitary napkin with sergeant’s stripes over the roll call podium and affixed a dildo either to the wall or the podium in the roll call room. Finally, she was the subject of sexually explicit graffiti and drawings of herself at three locations on city property: the roll call room, the roll call bathroom, and the bathroom of the Masonic Temple, a building used by both employees and the public. Several of the most egregious examples of the offensive material, of appallingly low character, are set forth in the margin. Hurley also testified that Madamba personally harassed her while she was on Charlie Platoon. In addition to the insults he directed at her during roll call and his decision to exclude her from sergeants’ meetings, Captain Madamba allegedly refused to take action against officers who “keyed out” plaintiffs radio transmissions, and told her that she was “too emotional” about the sanitary napkin incident. At one point, he reacted to the latest sexually explicit graffiti by rushing to see it and laughingly informing Hurley, in front of her colleagues, that “it’s really bad,” but he took no action to remove or prevent the appearance of the graffiti. In September of 1990, he sent a memorandum to defendant Rifice, an Inspector at the time, stating that Hurley had abused her sick leave. As a result, then-Chief of Police Robert McDuffie sent Hurley a memorandum requiring her to produce a doctor’s note every time she took sick leave. Hurley testified that when she complained to Madamba that the harassment at Charlie Platoon was becoming too much for her, he replied that women in the private sector are protected against such harassment because they “sleep with their bosses.” App. at 2776-77. When she attempted to change the topic, of conversation and commented on Madamba’s apparent weight loss, he stated that he lost weight by “having sex a few times a day,” and that women came to him “when they’re ready.” App. at 2498-2508. Hurley interpreted this entire conversation as a solicitation for sex. Hurley also testified that another sergeant on Charlie Platoon, defendant John Mooney, sexually discriminated against her in two ways. First, Mooney made several sexually derogatory comments to her, some of which Madamba witnessed yet did nothing to stop. For example, Mooney remarked that he had heard that Hurley “liked it hard and stiff,” and suggested that, when Hurley met with Police Captain McKenna, she was actually performing oral sex on him. See X App. at A2516, A2514. On another occasion, when Hurley was unable to locate her coffee mug, Mooney asked her if she wanted to drink out of his jock cup. See id. at A2514. Second, Mooney used his influence, which far exceeded his position as sergeant, to transfer Hurley to an undesirable assignment because of her sex. In particular, Hurley claims that Mooney was responsible for her transfer from her position as Court Liaison Officer to the Juvenile Truancy Task Force. After Mr. Hurley’s efforts to intervene on his wife’s behalf failed, Hurley submitted a memorandum to Madamba on November 1, 1990, detailing the harassment she experienced during her tour on Charlie Platoon and requesting a transfer. Madamba forwarded Hurley’s memo to the Chief of Police along with a memo of his own requesting that Internal Affairs conduct an investigation of Hurley for allegedly lying in the memo as part of a conspiracy to get money from the ACPD. No investigation along these lines was ever conducted. Shortly thereafter, Hurley was transferred to the Alpha Platoon shift of the Property and Evidence Unit. Although she had requested a transfer out of Charlie Platoon, Hurley alleges that this particular transfer constituted retaliation for her sexual harassment memorandum because the Property and Evidence Unit was widely regarded as an undesirable position, and the Alpha Platoon was incompatible with the personal schedule to which she had become adjusted while working on Charlie Platoon. Hurley also alleges that when she was transferred to the Property and Evidence Unit, she was denied a three percent pay increase that ACPD officers receive when transferred to plain clothes duty. She eventually received this increase on April 20, 1993, retroactive to November 8, 1990. Hurley contends that the harassment continued even after she left Charlie Platoon. For example, the graffiti apparently remained on the walls well after her transfer. Rifice, who had been promoted to Police Chief, testified at trial that he heard complaints about the graffiti as late as March of 1992, and Mr. Hurley took photographs of the graffiti in the summer of 1992. In addition, an EEOC investigation concluded that there was sexual graffiti in Hurley’s work area as late as June of 1993. Moreover, on June 13, 1992, while Hurley was attending a police seminar, Mooney, then Captain of Charlie Platoon, allegedly approached her and called her “the ass up from the Property Room” in front of two other sergeants. Hurley further avers that the Chief of Police, defendant Rifice, was aware of her plight and failed to take steps to protect her and discipline the perpetrators. She also testified that Rifice personally committed several affirmative acts of sexual discrimination against her. These acts included: (1) transferring her to the Property and Evidence Unit; (2) denying her access to Chief McDuffie; (3) denying her a three percent pay raise when she transferred to plainclothes duty; (4) denying her request for funeral leave; and (5) condoning an improper Internal Affairs investigation into her conduct while she was assigned to the Property Room. Hurley worked continuously until July 26, 1994, after which she went on an extended paid sick leave. She asserts that, as a result of the harassment, she has suffered severe emotional distress that has interfered with her work, her personal life, and her family life. Mr. Hurley alleges that the harassment has detrimentally affected his relationship with his wife. On July 10, 1992, Hurley filed complaints with both the United States Equal Employment Opportunity Commission (EEOC) and the New Jersey Department of Law and Public Safety, Division of Civil Rights (DCR). Both complaints named the ACPD as the sole respondent and alleged that Hurley had been harassed while on Charlie Platoon. Hurley submitted an affidavit in connection with her EEOC complaint alleging that Madamba and Mooney harassed her during her tour on Charlie Platoon. She claimed that obscene drawings of her remained visible as late as March of 1992, and that her transfer to the Property and Evidence Unit and denial of the three percent pay raise were in retaliation for her complaints of sexual harassment. On January 30, 1993, before the EEOC had issued plaintiff a right to sue letter pursuant to 42 U.S.C. § 2000e(f)(l), the Hurleys filed the district court complaint which stated all of Hurley’s instant claims. Subsequently, on October 12, 1993, the EEOC issued a determination on Hurley’s charge. The EEOC investigator found probable cause to believe that Hurley had been sexually harassed while she was on Charlie Platoon, but no probable cause on retaliation charge regarding the transfer to the Property and Evidence Unit and the denial of the three percent pay increase. On March 7, 1994, the Hurleys filed a second complaint. This complaint relied on the facts stated in the previous complaint and alleged discrimination pursuant to 42 U.S.C. § 2000e-2 and retaliation pursuant to 42 U.S.C. § 2000e-3(a). The district court subsequently consolidated these two complaints. Following extensive discovery, each of the defendants moved for summary judgment. The district court granted Mooney’s motion for summary judgment, and dismissed all claims against Madamba and Rifice with the exception of Hurley’s aiding and abetting claims under the LAD. Additionally, the court dismissed all claims against the ACPD except for Hurley’s hostile work environment claim under Title VII, Section 1983, and the LAD. The jury trial lasted more than two months. At the conclusion of the liability portion of the trial, the jury rendered a verdict against Madamba and the ACPD but found Rifice not liable. The jury awarded $575,000 in compensatory damages and awarded punitive damages against the ACPD but not against Madam-ba. A punitive damage hearing was conducted before the jury, at the end of which the jury awarded Hurley $700,000 in punitive damages. The ACPD and Madamba moved for judgment as a matter of law or, in the alternative, a new trial or a remittitur. Hurley moved for a new trial as to Rifice, and an additur with respect to the entire damages award. In addition, Rifíce and Mooney, as well as Hurley, moved for attorneys’ fees and costs. The district court denied defendants’ motion for a new trial and for a remittitur as to punitive damages and also denied plaintiffs motion for an additur. However, the court granted defendants’ motions for a remittitur with respect to the compensatory damages award, which the court remitted to $175,000. The court also denied the defendants’ fee petitions, but granted plaintiffs petition, subject to a reduced hourly rate and the exclusion of hours spent in pursuit of unsuccessful claims. Hurley accepted the remittitur, and the court awarded counsel fees and costs in favor of Hurley in the amount of $516,046 and $70,135, respectively. The court then entered an amended judgment, This appeal and cross-appeals followed. II. The ACPD’s Liability The ACPD argues that it is entitled to a new trial for five reasons. First, it contends that the district court abused its discretion under Rule 403 of the Federal Rules of Evidence by admitting “highly inflammatory and largely irrelevant evidence regarding alleged misconduct at the ACPD to which the plaintiff was not exposed.” ACPD’s Br. at 2. Second, it contends that the district court’s ruling that plaintiffs psychiatric expert could testify about a second diagnosis that was not contained in his reports “result[ed] in prejudicial surprise ‘inconsistent with substantial justice.’ ” Id. at 40 (quoting Conway v. Chemical Leaman Tank Lines, Inc., 687 F.2d 108, 111-12 (5th Cir.1982)). Third, the ACPD asserts that the punitive damage award of $700,000 against it is so excessive that it creates an inference that the jury’s liability verdict “resulted from its passion and prejudice toward the City of Atlantic City.” Id. at 46 (citing Dunn v. HOVIC, 1 F.3d 1371, 1382 (3d Cir.) (en banc), modified on other grounds, 13 F.3d 58 (3d Cir.1993)). Fourth, the ACPD claims that the district court’s jury charge under the LAD was misleading, confusing, and contrary to the law. Finally, on rear-gument, which we held in the wake of the recently decided Supreme Court cases of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the ACPD submits that these cases entitle it to a new trial on liability. We will address these arguments in turn. A. Evidence Not Obviously Linked to Hurley’s Experience in Charlie Platoon During trial, and over defendants’ objections, the district court permitted a number of witnesses to testify about alleged incidents of harassment and retaliation that were either remote in time from the “accrual date” or involved matters of which Hurley was unaware until after she filed suit. This testimony can be divided into three categories: (1) testimony by four women who were associated with the ACPD about incidents of sexual harassment and retaliation of which Hurley had no knowledge until after commencing suit; (2) testimony by eight male police officers about “locker-room” conversations between men outside the presence of women; and (3) testimony by Patrick and Donna Hurley about several incidents of sexual harassment against Mrs. Hurley between 1978 and 1981. The ACPD raises several arguments to support its contention that the district court abused its discretion by admitting this testimony. First, the ACPD points out that Hurley, was unaware of most of these comments until after she filed suit. Thus, the comments could not possibly contribute to a hostile work environment for her. Second, it argues that it was impossible to rebut most of the alleged incidents at trial because they occurred at unspecified times and locations. Third, the ACPD asserts that incidents from 1978 to 1981 were too remote in time to be probative. Finally, the ACPD maintains that the district court’s limiting instructions regarding this evidence were insufficient to offset the unfair prejudice resulting from these rulings. 1. The Challenged Evidence The district court permitted four women who had been associated with the ACPD to testify regarding the harassment of women within the department. Hurley did not witness any of these incidents, nor did she become aware of the alleged harassment until after she commenced suit. Martha Donovan, a municipal prosecutor for the City of Atlantic City, testified about some mistreatment of Hurley that she had observed and also testified about an incident involving Sergeant Edward Yard of the ACPD. According to Ms. Donovan’s testimony, in the summer of 1989 Sergeant Yard called Ms. Donovan a “cunt” and stated that he “ought to slap [her] face” for giving him an order; the incident occurred in front of fifty other people, including other police officers, in the hallway of the courthouse. See IV App. at A831. Donovan immediately complained to her supervisor and the officer ultimately apologized. At some point thereafter, Sergeant Yard’s responsibilities were changed, and he had minimal contacts with Ms. Donovan thenceforth. Ms. Donovan never reported the incident to the ACPD supervisory staff. Julia Cardy and Lisa O’Keefe, two civilian employees of the ACPD in the payroll department, testified that they were generally dissatisfied with their male ACPD supervisors. Ms. Cardy testified that in 1992, as a result of reporting her supervisor, Sergeant Griggs, to his immediate supervisor, Captain MacDonald, for his misbehavior, she was retaliated against and subjected to chauvinistic remarks. Ms. Cardy further testified that women were treated “pretty poorly” if they “spoke out” against the mistreatment. V App. at A1166, A1171. Ms. O’Keefe stated that Sergeant Griggs and Captain MacDonald treated her with disrespect over a long period oí time extending to at least 1992, when there was apparently some ill-feeling towards female employees as a result of Hurley’s lawsuit. See IV App. at A858-60. She also testified that complaints to Rifiee received no response, see id. at A862, although she ultimately filed a union grievance and the offending officers were removed from authority over the payroll department. Officer Deborah Rando of the ACPD testified about the derogatory and sexually demeaning statements made to her in 1992 by her supervisor, defendant Mooney. At one point, Mooney referred to her conduct in profane terms and, when she objected, informed her that no one would believe her if she complained. See id. at A943. Despite this, she did complain to Mooney’s supervisor, who warned her to think about her career and told her not to repeat her allegations to anyone. See id. at A948-50. The district court permitted eight male police officers from the ACPD to testify at trial about derogatory comments made about women generally. These officers testified that, at least from 1990 to the time of trial, women were commonly referred to as “cunts,” “douche bags,” “broads,” “bitches,” and, as a group, “the crack troop.” App. at A413, A768. In addition, one officer testified that most inspectors and captains commonly referred to Hurley as “the whacky [sic] cunt.” Id. at 443. These same officers testified, however, that these comments were always made outside the presence of women. Hurley was unaware of these comments until after she commenced suit. Finally, the district court permitted both Patrick and Donna Hurley to testify, over objection, about events occurring well before the January 20, 1987 accrual date. For example, Mr. Hurley testified about alleged acts of discrimination against his wife dating back to her tenure at the Police Academy in 1978. He also testified about comments allegedly made by Hurley’s supervisor, Sergeant Walter Reay, between 1978 and 1980. Reay supposedly asked Hurley about her personal hygiene and made weekly comments during roll call. Hurley also testified about various incidents that allegedly occurred in 1981, when she was a patrol officer and Louis Rivera was her partner. Hurley testified that she “heard” that she was referred to as a “cunt.” Id. at 2388-90. The court .also permitted her to testify that, during 1981, a Hustler magazine was left on her patrol car seat and a tampon was hung from her rear view mirror. 2. Admissibility of the Evidence In the district court’s view, all of the evidence was admitted for the same purpose: to “permit[ J the jury to more intelligently evaluate the evidence that did create liability.” Hurley, 933 F.Supp. at 411. The court reasoned that permitting evidence of other women’s experiences at the ACPD, of the attitudes of male officers towards women generally, and of Hurley’s experiences prior to 1987 served several important purposes in this . trial. It allowed the jury to gain insight into the motives, attitudes, and intentions of the defendants. It gave them the opportunity to evaluate the adequacy of management’s response to Hurley’s complaints during the statutory period. It provided the jury with a sense of whether the events that took place during the statutory period were anomalous or accidental, or instead were part of a “pervasive and severe” pattern. Plaintiffs treatment during the statutory period was unquestionably influenced by and related to her treatment throughout the course of her career at the ACPD. Plaintiffs experience was reflective of the general attitudes of the men around her; those attitudes also influenced, and were revealed in, the treatment of other women in the ACPD. Id. Although the district court believed that evidence of past harassment was “crucial to the jury’s evaluation of the work environment at the ACPD,” id. at 410, the court instructed the jury not to consider the evidence directly for purposes of liability. See id. at 411. Specifically, the court stated: You are to consider whether each defendant has engaged in sexual discrimination for the period from January 20, 1987, through January 20, 1993. You may consider evidence from before and after these dates to help you evaluate-the defendants’ conduct from January 20, 1987, through January 20, 1993, but liability attaches, if at all, only to defendants’ conduct during this period. Id. (alteration removed). The court believed that, “[b]y admitting the evidence but forbidding the jury to consider it as directly relating to liability, [it was] able to balance the interests of the plaintiff and the defendants.” Id. In addition, the court instructed the jury that, in determining whether or not a hostile work environment existed, it could only consider conduct that actually altered Hurley’s own work environment during the relevant period. See App. at A5278. The evidence issues fall largely within the ambit of Federal Rule of Evidence 401, which defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Rule 401 does not raise a high standard. See In re Paoli R.R. Yard, PCB Litig., 35 F.3d 717, 782-83 (3d Cir.1994). Also implicated in our discussion is Rule 403, which provides, in pertinent part, that “[relevant] evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.... ” We review evi-dentiary rulings for abuse of discretion, see Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 132 (3d Cir.1997), with substantial deference under Rule 403. We conclude that the district court did not abuse its discretion under Rules 401 or 403 by admitting most of the challenged evidence, and that the error with respect to a portion thereof was harmless. Evidence that women other than the plaintiff were subjected to a hostile work environment clearly meets Rule 401’s requirements in a number of -situations. For example, a plaintiff may show that, while she was not personally subjected to harassing conduct, her working conditions were nevertheless altered as a result of witnessing a defendant’s hostility towards other women at the workplace. See Lehmann, 626 A.2d at 457 (“A woman’s perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers.”). A plaintiffs knowledge of harassment or pervasively sexist attitudes is not, however, a requirement for admitting testimony on those subjects in a harassment suit. Evidence of harassment of other women and widespread sexism is also probative of “whether one of the principal nondiscriminatory reasons asserted by [an employer] for its actions was in fact a pretext for ... discrimination.” Glass v. Philadelphia Elec. Co., 34 F.3d 188, 194 (3d Cir.1994); see also Heyne v. Caruso, 69 F.3d 1475, 1480 (9th Cir.1995). In Glass, we found reversible error where the plaintiff attempted to introduce evidence of past racial harassment to explain negative evaluations and the trial court excluded it because it was time-barred. Glass relied on Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir.1988), adopting its holding that circumstantial proof of discrimination, including evidence of past harassment and evidence of discrimination against others in the protected class, is admissible. Moreover, in Rule 403 terms, this evidence is highly probative, hence it is unlikely that any putative prejudice therefrom will be unfair or will outweigh its value. The principles established by our precedent apply to this case. Evidence of other acts of harassment is extremely probative as to whether the harassment was sexually discriminatory and whether the ACPD knew or should have known that sexual harassment was occurring despite the formal existence of an anti-harassment policy. See West v. Philadelphia Elec. Co., 45 F.3d 744, 752 (3d Cir.1995). Neither of these questions depends on the plaintiffs knowledge of incidents; instead, they go to the motive behind the harassment, which may help the jury interpret otherwise ambiguous acts, and to the employer’s liability. This kind of evidence is particularly important given the ACPD’s main defenses at trial, which were that the incidents of abuse Hurley suffered were trivial horseplay to which both men and women were subjected and that its written sexual harassment policy was sufficient to insulate -it from liability. Contrary to the ACPD’s position, it is implausible in the extreme that Hurley was somehow immune from the pervasive sexism at the ACPD, as it was described by both female and male officers. See Hurley, 933 F.Supp. at 411; see also Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir.1993) (holding that employees’ remarks and racially derogatory notes sent by unidentified people were circumstantial evidence that management permitted an atmosphere of prejudice to infect the workplace). The challenged evidence creates a basis for an inference that Hurley was targeted for abuse because she was a woman. It also gives reason to infer that the ACPD knew or should have known not only what was happening to its female officers but also, and most importantly, that the written sexual harassment policy was ineffective, and patently so. Indeed, it is hard to imagine evidence more relevant to the issue of whether a sexual harassment policy was generally effective than evidence that male officers did not respect it and that female officers were not protected by it. Officer Rando and Ms. Cardy, for example, both testified about the dismissive and even retaliatory treatment they experienced when they reported male officers’ misbehavior, and this was relevant, probative evidence that the ACPD was consistently insensitive to female employees’ experiences of harassment. See Hunter v. Allis-Chalmers Corp., 797 F.2d 1417 (7th Cir.1986) (evidence of frequent misconduct against plaintiff and others was “pertinent, perhaps essential” to the employer liability determination); Vinson v. Taylor, 753 F.2d 141, 146 (D.C.Cir.1985) (same), aff'd sub nom. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). This evidence remains highly relevant under Ellerth and Faragher. See Faragher, 118 S.Ct. at 2293 (discussing evidence of city’s general failure to disseminate and enforce its sexual harassment policy in rejecting the availability of the affirmative defense in a particular case of harassment). Aside from its relevance to the issue of whether the ACPD is liable for the hostile environment Hurley encountered, the evidence is also relevant to her intentional sex discrimination, quid pro quo, and retaliation claims. The general atmosphere of sexism reflected by the challenged evidence is quite probative of whether deci-sionmakers at the ACPD felt free to take sex into account when making employment decisions, when deciding whether to abuse their positions by asking for sexual favors, and when responding to sexual harassment compláints. As Glass held, evidence of pervasive sexual harassment makes retaliation claims more credible, because harassers may be expected to resent attempts to curb their male prerogatives. See Glass, 34 F.3d at 195; see also Hawkins v. Hennepin Technical Ctr., 900 F.2d 153, 156 (8th Cir.1990). Evidence of sexually derogatory and sexist harassment makes disparate treatment claims more credible as well, since such discriminatory acts stem from similar motives. See Glass, 34 F.3d at 192; Josey, 996 F.2d at 641; Hawkins, 900 F.2d at 155; Hunter, 797 F.2d at 1421. Other courts have found similarly with respect to quid pro quo, claims. See Heyne, 69 F.3d at 1479-80; Phillips v. Smalley Maintenance Servs., Inc., 711 F.2d 1524, 1532 (11th Cir.1983); Sowers v. Kemira, Inc., 701 F.Supp. 809, 816 (S.D.Ga.1988). In this case, because of its high probative value, there was no abuse of discretion in admitting the challenged testimony from other officers. Any putative prejudice was not unfair, and at all events was outweighed by the probative value. Nor are any of the other Rule 403 factors present to counsel exclusion. We do believe that evidence of events from 1979 to 1981 was improperly admitted because it was too distant in time from the events at the center of the ACPD’s liability. Hurley did not claim a continuing violation from 1979 to 1992, and the district court abused its discretion when it admitted evidence from that distinct period in Hurley’s career. We may find such error harmless only if “it is highly probable that the error did not affect the outcome of the case.” Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 53 (3d Cir.1989); see also McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924, 927-28 (3d Cir.1985). In this case, the error was harmless. As the district court noted: This is a case where the plaintiff was compelled to attend roll call in front of a life-size drawing of herself performing oral sex as her supervisor, Madamba, sat eight feet away; where, in addition to pervasive graffiti directed at plaintiff, a sanitary napkin bearing sergeant’s stripes dangled over the podium from which she spoke, and a dildo was affixed to a wall or ceiling nearby; and where plaintiffs professionalism and performance were constantly undermined because the men on the force could not tolerate a women among them. It is a case where the plaintiffs supervisor responded to plaintiffs entreaties by insinuating that he might be able to help her if only she would sleep with him. Hurley, 933 F.Supp. at 413 (citations omitted). When viewed against the uncontest-ably relevant and admissible evidence, it is highly improbable that the improperly admitted evidence affected the judgment in this case. Indeed, were we to hold all of the evidence challenged by the ACPD inadmissible, we believe that its admission would still amount to harmless error, so clear is the evidence of the harassment Hurley experienced. For the foregoing reasons, the ACPD’s Rule 403-based evidentiary arguments fail. B. Dr. Hoyme’s “Surprise” Testimony Dr. Hoyme, plaintiffs psychological expert, issued his first report on November 16,1994. In that report, he wrote that “[m]y diagnosis [of Donna and Patrick Hurley] is Adjustment Disorder with mixed features of anxiety and depressed mood (309.28 DSM IV).... This diagnosis carries an implied causal connection between their traumatic experiences (sexual harassment, hostile work environment, and subsequent harassment) and their symptoms.” App. at 5387. Subsequently, on February 20, 1995, Dr. Hoyme submitted another report in response to a report issued by defendants’ psychological expert, Dr. Toborowsky. According to Dr. Hoyme’s rebuttal report: Mrs. Hurley has experienced severe emotional injury and pain as the result of sexual harassment in the course of her work in the Atlantic City Police Department. Contrary to Dr. Toborow-sky’s stance, it is not necessary to prove that she has developed diagnosable psychiatric disorder in order to recognize or validate this substantial harm. Id. at 5849. On March 2, 1995, the magistrate judge ordered that Dr. Hoyme’s rebuttal report be barred as untimely. Hurley appealed this decision to the district court, and the court initially upheld the magistrate’s decision. The court also ruled, however, that Hurley could renew this motion at trial when the court “would have a better sense of the significance of the testimony.” Hurley, 933 PISupp. at 408. Hurley renewed her motion at trial, and the district court overruled the magistrate’s decision “[bjecause [the court was] concerned that the magistrate judge’s sanctions against the plaintiff cut too close to the essential truthseeking function of the Court....” Id. At trial, Dr. Hoyme testified about “another diagnosis that didn’t neatly fit into the DSM criteria”: a reaction to a “psychological assault.” App. at 1667-68. He further testified that the defendants’ conduct constituted an “aggressive attack on her” and a kind of “sexual assault” which caused severe pain comparable to a physical touching. Id. at 1726-29. In closing, Hurley’s counsel also referred to Dr. Hoyme’s “psychological assault” testimony as a basis for awarding damages. The ACPD argues that Dr. Hoyme’s reference to a “second diagnosis” regarding a “psychological assault” on Donna Hurley constituted unfair surprise because the testimony was materially different from that offered previously and provided the defendants with no meaningful opportunity for rebuttal. This unfair surprise, according to the ACPD, was “inconsistent with substantial justice” and warrants a new trial. We disagree. A district court’s decision to allow an expert to testify beyond the scope of his report is reviewed under an abuse of discretion standard. See Greate Bay Hotel & Casino v. Tose, 34 F.3d 1227, 1236 (3d Cir.1994). “We determine whether there has been an abuse of discretion by considering four factors: ‘(1) the prejudice or surprise in. fact to the opposing party, (2) the ability of the party to cure the prejudice, (3) the extent of disruption of the orderly and efficient trial of the case, and (4) the bad faith or willfulness of the noncompliance.’ ” Id. (quoting Beissel v. Pittsburgh & Lake Erie R. Co., 801 F.2d 143, 150 (3d Cir.1986)). We cannot conclude that the district court abused its discretion by permitting Dr. Hoyme’s so-called “second diagnosis.” First, notwithstanding Dr. Hoyme’s rebuttal report, his initial report hinted strongly at this “second diagnosis,” because it contained an explanation of the severe harm inflicted by the extensive sexual harassment Hurley experienced. Second, the defendants actually received the rebuttal report and were unquestionably aware of the appealability of the magistrate judge’s order. Moreover, the defendants had several weeks after Dr. Hoyme’s testimony to prepare rebuttal testimony and, thus, cure any possible prejudice. Indeed, Dr. Tobo-rowsky testified that he had previously read both the deposition and courtroom testimony of Dr. Hoyme. Third, there was no need to call any witnesses out of order or any other disruptions at trial. Finally, while this evidentiary dispute might have been the product of “discovery-based bickering between the lawyers” and the “institutional differences between lawyers, who demand unvarying precision, and psychiatrists,” see Hurley, 933 F.Supp. at 408, there is no evidence of bad faith. C. Inference of Jury Prejudice and Passion The ACPD contends that the $700,000 punitive damage award was the “product of the same abandonment of ‘cool reason’ in favor of ‘outrage and disgust’ which shocked the trial court’s conscience with respect to the compensatory damages.” ACPD Br. at 46. Indeed, the ACPD argues that this “award was so excessive as to give rise to a clear inference that the jury verdict was the result of mistake, passion, prejudice or partiality.” Id. at 43. Therefore, according to the ACPD, we must set aside the jury’s verdict and order a new trial. Once again, we disagree. In Dunn, we observed that a defendant would be entitled to a new trial, rather than remittitur, upon showing that “the jury verdict resulted from passion or prejudice.” Dunn, 1 F.3d at 1383; see also 11 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2815, at 165 (2d ed. 1995) (remittitur- is “not proper if the verdict was the result of passion and prejudice, since prejudice may have infected the decision of the jury on liability, as well as on damages”). We further rejected the argument, however, that “the size of the award alone was enough to prove prejudice and passion.” Dunn, 1 F.3d at 1383; see also Mason v. Texaco, Inc., 948 F.2d 1546, 1561 (10th Cir.1991) (reducing a punitive damage award of $25 million by one-half because it shocked the court’s conscience, but upholding the jury’s liability determination because there was no evidence it was tainted). Here, as in Dunn, the defendant’s only evidence of jury prejudice and passion is the amount of the punitive damage award itself. This is insufficient, and the ACPD’s argument cannot prevail. D. Jury Charge on Hostile Work Environment The ACPD also argues that it is entitled to a new trial because the district court erred in its charge to the jury on hostile work environment by mixing different concepts from Title VII and the LAD. Specifically, defendant contends that the district court strayed from Lehmann v. Toys R Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993), in which the New Jersey Supreme Court formulated the basic standard for determining whether acts of harassment in the workplace constitute invidious discrimination in violation of the LAD. Under the Lehmann standard, a plaintiff must demonstrate that “the complained-of conduct (1) would not have occurred but for the employee’s gender; and it was (2) severe or pervasive enough to make a(3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.” Id. at 453. The ACPD argues that the district court erred when it instructed the jury to consider ten factors, which the district court primarily derived from the ABA Model Charge and Title VII case-law, when determining whether the ACPD was liable under the LAD. Finally, the ACPD argues that the district court failed to instruct the jury as to precisely how each of the factors bore on the issue of sexual harassment. “We generally review jury instructions for abuse of discretion to determine whether they are misleading or inadequate.” Woodson v. Scott Paper Co., 109 F.3d 913, 929 (3d Cir.), cert. denied, — U.S. -, 118 S.Ct. 299, 139 L.Ed.2d 230 (1997). “However, when the question is whether the instructions misstate the law, our review is plenary.” Id. (citing Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir.1989)). We review jury instructions to determine whether, “taken as a whole, they properly apprised the jury of the issues and the applicable law.” Dressler v. Busch Entertainment Corp., 143 F.3d 778, 780 (3d Cir.1998) (quotation marks omitted). Under the first prong of the Lehmann test, a plaintiff must show “by a preponderance of the evidence that she suffered discrimination because of her sex.” Lehmann, 626 A.2d at 454. Because the LAD is not a fault or intent-based statute, a plaintiff “need not show that the employer intentionally discriminated or harassed her, or intended to create a hostile work environment.” Id. at 454. The second prong requires that the objectionable conduct be sufficiently “severe or pervasive” to state an actionable claim. See id. at 455 (“We emphasize that it is the harassing conduct that must be severe or pervasive, not its effect on the plaintiff or on the work environment.” (citing Ellison v. Brady, 924 F.2d 872, 878 (9th Cir.1991))). In adopting this test, the court expressly rejected the “regular and pervasive” standard set forth by this court in Andrews, 895 F.2d at 1482. The New Jersey Supreme Court concluded that the Andrews test strayed from the United States Supreme Court’s standard in Meritor and “would bar actions based on a single, extremely severe incident or, perhaps, even those based on multiple but randomly occurring incidents of harassment.” Lehmann, 626 A.2d at 455. Indeed, the New Jersey Supreme Court recently concluded that a plaintiff created a triable issue based on a single racial slur. See Taylor v. Metzger, 152 N.J. 490, 706 A.2d 685 (1998). The third prong of the Lehmann test considers the harassment from the perspective of a reasonable woman (or man, as the case may be). Such an objective, gender-specific standard, according to the court, “provides flexibility” by “incorporating community standards” and focuses attention “on the nature and legality of the conduct, rather than on the reaction of the individual plaintiff,” Lehmann, 626 A.2d at 458, and it also “recognize[s] and respect[s] the difference between male and female perspectives on sexual harassment.” Id. at 459. “Only an idiosyncratic response of a hypersensitive plaintiff to conduct that a reasonable woman would not find harassing is excluded by the reasonable woman standard.” Id. at 458-59. Finally, under the fourth Lehmann prong, a plaintiff must show that “her working conditions were affected by the harassment to the point at which a reasonable woman would consider the working environment hostile.” Id. at 457. A plaintiff need not demonstrate psychological harm or economic loss. In this case, the district court’s hostile work environment sexual harassment charge provided as follows: It is important to understand that, in determining whether a hostile work environment existed at the Atlantic City Police Department, you must consider the evidence from the perspective of a reasonable woman in the same position. You must look at the evidence from the perspective of a reasonable woman’s reaction to a similar environment under similar circumstances. That is, you must determine whether a reasonable woman would have been offended or harmed by the conduct in question. You must evaluate the total circumstances and determine whether the alleged harassing behavior' could be objectively classified as the kind of behavior that would seriously affect the psychological or emotional well-being of a reasonable woman. The reasonable woman is simply an average woman of normal sensitivity and emotional make-up. It is equally important to understand, however, that the reasonable woman standard applies only to the issue of liability for hostile work environment sexual harassment. It does not apply to liability for intentional sexual harassment, retaliation, or quid pro quo harassment, nor to the calculation of damages. Plaintiff has alleged that she has been subjected to a hostile work environment because of harassment based on her sex. To prevail on this theory, she need not demonstrate any job benefits were conditioned on submitting to hostile sexual conduct or were denied because of refusing to give in to that conduct. Rather, to establish a claim of hostile work environment sexual harassment, plaintiff must prove by a preponderance of the evidence that the conduct about which she complains, one, would not have occurred but for the employee’s gender, and it was, two, severe or pervasive enough to make a, three, reasonable woman believe that, four, the conditions of employment are altered and the working environment is hostile or abusive. The more severe the conduct, the less extensive it need be for you to find it is hostile. Conversely, the less severe the conduct, the more persuasive [sic] or regular it should be in order for you to find that it is hostile. Plaintiffs hostile work environment claim must be related to conditions which actually altered her own work environment. Statements, actions, or conditions which occurred at the Atlantic City Police Department outside the presence of plaintiff and plaintiff was unaware [sic] cannot be considered part of the hostile work environment, unless you find such statements, actions or conditions affected the plaintiffs own work environment. In evaluating plaintiffs hostile work environment claims you should consider the following factors: one, plaintiffs reasonable expectation upon entering the workplace; two, the total physical environment of the area in which plaintiff worked; three, whether plaintiff was exposed to sexually explicit words or comments, drawings, graffiti, or obscenity in the workplace, and, if so, the degree, persistence, and type such [sic] obscenity to which exposed; four, whether the sexually explicit words or comments, drawings, graffiti or obscenity were directed at plaintiff, and, if so, the frequency of the offensive encounters; five[,] severity of the conduct and the context in which it occurred; six, whether the conduct was unwelcome, that is, conduct plaintiff regarded as unwanted or unpleasant; seven, the likely effect on a reasonable woman’s psychological well-being; eight, whether the conduct reasonablyfsic] interfered with plaintiffs work performance; nine, the extent to which supervisors upon learning of sexually harassing conduct, acted promptly and effectively to respond to such conduct; [ten], whether the complained of conduct was directed at men and woman alike. It is not enough that the work environment was generally harsh, friendly [sic], unple[a]sant, crude or vulgar to all employees of both sexes. In order to find a hostile work environment sexual harassment, you must find that plaintiff was harassed because she is a woman. The harassing conduct may, but need not be sexual in nature. Rather, its defining characteristic is that the harassment occurs because of the victim’s sex. App. at 5276-79. We conclude that the district comb’s hostile work environment charge, taken as a whole, properly apprised the jury of the issues and law under the LAD. The charge clearly and accurately set forth the four-prong test set forth in Lehmann. Moreover, the court’s list of factors provided additional guidance to the jury for its consideration of whether the requisite elements of liability had been established. Although this nonexhaustive list was largely derived from the ABA Model Charge and Title VII caselaw, we believe that the New Jersey Supreme Court would find many of these factors useful and relevant for deliberations in a hostile work environment sexual harassment claim under the LAD. See Lehmann, 626 A.2d at 452 (“In construing the terms of the LAD, this Court has frequently looked to federal precedent governing Title VII ... as a key source of interpretive authority.” (citation and quotation marks omitted)). As a result, we reject the ACPD’s argument. We also find no merit in the ACPD’s contention that one of the factors referenced in the charge, the plaintiffs reasonable expectation upon entering the workplace, is inconsistent with Leh-mann’s requirement that the finder of fact consider workplace hostility “from the perspective of a reasonable woman.” ACPD’s Br. at 49 (quoting Lehmann, 626 A.2d at 457-58). In this case we do not see the harm from the shifting reference. Indeed, we fail to see how this distinction could aid the ACPD since, if anything, the “reasonable expectation upon entering the workplace” factor seems to give an employer extra leeway when a woman enters what she knows to be a traditionally male preserve, whereas the generalized reasonable woman standard is less concerned with what a workplace has traditionally been like and focuses on what a reasonable woman may rightfully expect from her employers. Finally, we reject the ACPD’s contention that the district court erred in failing to instruct the jury as to precisely how each of the factors bore on the issue of sexual harassment. E. Faragher v. City of Boca Raton and Burlington Industries v. Ellerth After the initial oral argument on this appeal, the Supreme Court decided Faragher v. City of Boca Raton and Burlington Industries v. Ellerth. These decisions substantially changed the law of Title VII on employer liability. The ACPD contends that it is entitled to a new trial under the Ellerth /Faragher standards. For a variety of reasons, however, we conclude that the new structure and taxonomy of Title VII liability makes no difference to the outcome in this case. We first address the ACPD’s claim that it was entitled to an affirmative defense, and then discuss the effects of Ellerth and Faragher on the “quid pro quo” claims in the case. 1. The Affirmative Defense The ACPD claims that the trial court’s jury instructions were defective because the jury was instructed that the existence of an effective sexual harassment policy was merely a factor to be considered in imposing liability and not an absolute defense. There are four problems with this claim. First, Ellerth and Faragher do not, as the defendants seem to assume, focus mechanically on the formal existence of a sexual harassment policy, allowing an absolute defense to a hostile work environment claim whenever the employer can point to an anti-harassment policy of some sort. The necessary elements of a defense are “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ellerth, 118 S.Ct. at 2270. A stated policy should be “suitable to the employment circumstances.” Id. The proof at trial focused extensively on what the ACPD did and failed to do about the harassment—issuing written policies but not enforcing them, painting over of-' fensive graffiti every few months only to see it go up again in minutes, failing to investigate sexual harassment as it investigated and punished other forms of misconduct. Although it diligently attempted to convince the jury that its policies and procedures protected it, the ACPD failed to make a colorable case that its policies met the Ellerth /Faragher standards. See Hurley, 933 F.Supp. at 419; cf. Payton v. New Jersey Turnpike Auth., 148 N.J. 524, 691 A.2d 321 (1997) (holding that a slow remedial process or one that leaves an employee exposed to harassment cannot be effective). In Faragher, in fact, the Court found it unnecessary to remand for consideration of the newly codified defense, since the record established that Boca Raton failed to disseminate its policies or monitor the acts of its employees, so that as a matter of law it could not prevail on the defense. See Faragher, 118 S.Ct. at 2293; see also Booker v. Budget Rent-A-Car Sys., 17 F.Supp.2d 735 (M.D.Tenn.1998) (rejecting the affirmative defense on a summary judgment motion because the employer had notice of incidents of discrimination but failed to act on it). A similar analysis applies here. The district court commented extensively on the ACPD’s failure to implement anti-harassment policies or to inquire into the harassing behavior of any of its employees. It was evident that Madamba, a supervisor with the duty to stop harassment, was aware of much of the harassment, even that which he did not himself inflict. The ACPD insists that there were five mechanisms that Hurley should have explored in full before suing: her direct supervisor, Internal Affairs, the Affirmative Action Officer, the Chief through his “open door policy,” and the union grievance procedure. See ACPD Letter, July 16, 1998, at 5. However, there was extensive testimony at trial about the ineffectiveness of these mechanisms. Moreover, Hurley had no obligation to try all these mechanisms, because her immediate supervisor, who was responsible for preventing and redressing harassment pursuant to the ACPD’s own policy, was on notice of the harassment. An employer cannot “use its own policies to insulate itself from liability by placing an increased burden on a complainant to provide notice beyond that required by law.” Williamson v. City of Houston, 148 F.3d 462, 467 (5th Cir.1998). Second, the ACPD apparently misreads the jury instructions. The liability instructions first stated that the ACPD would be liable for acts within the scope of a supervisor’s employment, which was to be judged by the time, place, and foreseeability of the harassing acts. See XXII App. at A5281-82. The instructions continued that the existence of “a widely-disseminated anti-harassment policy or a well-publicized and an effective formal or informal complaint structure, training or monitoring mechanisms” would be evidence that sexual discrimination was not within the scope of employment. Id. at A5282. Then, the instructions set forth the standard agency law on which Faragher and Ellerth relied — the employer is not liable for acts outside the scope of employment unless (1) the employer intended the conduct; (2) the employer was negligent or reckless in that it knew or should have known about the supervisor’s actions and failed to take prompt and effective remedial measures; or (3) the supervisor was purporting to act as a supervisor, he had authority to control the employee’s working environment, and his actions were aided and abetted by the authority delegated by the employer. See XXII App. at A5282-83 (tracking Lehmann, 626 A.2d at 461-62). Next, the instructions listed factors to consider when determining whether the employer’s negligence contributed to a supervisor’s sexual discrimination: the existence of a formal anti-harassment policy; the presence of effective formal or informal complaint structures, training, and/or monitoring mechanisms; the extent to which the employee used the existing complaint procedures; and whether the employer took prompt and effective remedial action in response to complaints. According to the instructions, these factors should be evaluated together. See id. at A5283 (tracking Lehmann, 626 A.2d at 463). Finally, the instructions stated that the ACPD would be responsible for harassment by non-supervisory employees if it knew or should have known that such harassment was occurring and failed to take preventive or curative measures when it had reason to believe that harassment may have occurred; the jury was instructed to consider whether the ACPD took “all reasonable steps necessary to address sexual harassment.” Id. at A5284. The ACPD has failed to identify how these instructions conflict with Faragher and Ellerth, which relied on the same agency principles as Lehmann. Indeed the able trial judge quite presciently anticipated Faragher and Ellerth. The ACPD argues that the instructions allowed the jury to find it liable if the jury concluded that some factors outweighed the existence of an effective sexual harassment policy. See ACPD Letter, July 16, 1998, at 8. The ACPD presumably means that the jury could have used the extent of the harassment to discount the ACPD’s anti-harassment policy, although the ACPD is not clear on this issue. Of course, under Far-agher, the extent of the harassment would be helpful evidence of the actual effectiveness of a formal policy, which is a necessary element of the Faragher defense. But that is beside the point, as the ACPD has confused the part of the instructions that sets forth a ten-factor test for determining whether a hostile environment existed, see supra Section II.A.4, with the part of the instructions that dealt with the ACPD’s liability assuming that the jury found a hostile environment existed, see XXII App. at A5282-84. If anything, the ACPD got to double-dip on its harassment policy, because the jury was told to factor it into the initial hostile environment determination and then to use it again when considering liability. See Payton, 691 A.2d at 327 (approving this dual use). A third reason to reject the ACPD’s contention is that Faragher and Ellerth establish that the defense of employer due care is an affirmative one. See ElleHh, 118 S.Ct. at 2270. Thus, the employer bears the burden of proof. The instructions given at trial put the burden on Hurley to prove that the ACPD was liable for negligence despite its harassment policy and other remedial measures. Any error, therefore, worked in favor of the ACPD and could not justify a new trial. Finally, Faragher and Ellerth do not necessarily control this case, which was also brought under the New Jersey LAD. Even if the jury instructions are not quite right with respect to Faragher, there is no colorable argument that they misstated New Jersey law. For all these reasons, we conclude that these recent additions to Title VII jurisprudence do not require us to re