Academic journal article Defense Counsel Journal

"Let's Be Reasonable" -- Resolving the Ambiguities of the Faragher-Ellerth Affirmative Defense

Academic journal article Defense Counsel Journal

"Let's Be Reasonable" -- Resolving the Ambiguities of the Faragher-Ellerth Affirmative Defense

Article excerpt

If employers have acted reasonably to stop and correct supervisor harassment, the defense should be available even if the employee has acted reasonably

THE BIG one hit in 1998. What had rumbled in the lower courts for 12 years--the question of vicarious liability in sexual harassment cases in which the victim's harasser is her supervisor--eventually rose in the U.S. Supreme Court in a wave of seismic proportion as a new level of sexual harassment litigation surfaced. In two 7-2 decisions--Faragher v. City of Boca Raton(1) and Burlington Industries Inc. v. Ellerth(2)--the Court created strict liability in the hostile environment context unless the employer can establish an affirmative defense. The Court's new standard appropriately allots responsibility to both the employer and employee to eliminate severe and pervasive sexual harassment from the workplace.

The aftermath is the affirmative defense, which Justice Souter outlined in Faragher and Justice Kennedy in Ellerth:

   The defense comprises two necessary elements: (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 to avoid harm otherwise. While proof that an employer had
   promulgated an anti-harassment policy with complaint procedure is not
   necessary in every instance as a matter of law, the need for a stated
   policy suitable to the employment circumstances may appropriately be
   addressed in any case when litigating the first element of the defense. And
   while proof that an employee failed to fulfill the corresponding obligation
   of reasonable care to avoid harm is not limited to showing an unreasonable
   failure to use any complaint procedure provided by the employer, a
   demonstration of such failure will normally suffice to satisfy the
   employer's burden under the second element of the defense. No affirmative
   defense is available, however, when the supervisor's harassment culminates
   in a tangible employment action, such as discharge, demotion, or
   undesirable reassignment.(3)

Unfortunately, the majority opinions in Faragher and Ellerth do not resound with clarity as to exactly what an employer must do to escape liability for sexually harassing behavior by a supervisor. This was pointed out by the dissenters--Justices Scalia and Thomas--with the latter stating in Ellerth that the majority provided "shockingly little guidance about how employers can actually avoid vicarious liability. Instead, it issues only Delphic pronouncements and leaves the dirty work to the lower courts."(4) A district court judge has remarked, "No court has sough to establish a bright line as to what is or is not reasonable as the term is contemplated in Faragher and Ellerth."(5)

Faragher and Ellerth do little more than create confusion and an abundance of litigation, which has and undoubtedly will continue in the lower courts. Even deeper than the rift between the Supreme Court's majority and dissenters is the split between the circuits as to what is reasonable versus what is unreasonable. Whatever the Court's intent, Faragher and Ellerth did result in one certainty: judicial overload from the volume of litigation that will result in attempting to apply the Supreme Court's ambiguous rulings.

What is the affirmative defense made available to employers? Faragher and Ellerth leave these issues for consideration:

* The meaning and intent of Title VII of the Civil Rights Act of 1964, 42 U.S.C. [sections] 2000 et seq., with regard to sexual harassment and vicarious liability of employers for their supervisors' actions;

* An analysis of the symbiotic prongs of the affirmative defense--the obligations of employers and employees;

* The availability of protection for a reasonable employer who receives a reasonable complaint and promptly remedies the sexually harassing behavior. …

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