Avoiding Liability in Sexual Harassment Claims

January 13, 2002 Advisory

The Ellerth-Faragher Defense

As many employers know, under Supreme Court rulings, an employer may avoid liability in a sexual harassment case by establishing: 1) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and 2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities available, or to otherwise avoid harm. The ability to invoke this defense, often referred to as the Ellerth-Faragher affirmative defense, is dependent upon the practices and policies an employer has in place prior to a claim being brought. Following is some practical advice on how an employer can best position itself to successfully defend against harassment claims.

Employer's Exercise of Reasonable Care

Turning to the first prong of the affirmative defense, courts have generally held that an employer's implementation of a formal harassment policy is a necessary element of the defense. Moreover, the employer should publish its harassment policy, since a failure to do so could prove fatal to the employer's ability to prevail on the defense. In terms of the particulars of an effective policy, the policy should, at a minimum, specify prohibited conduct, set forth a clear reporting procedure, and encourage reporting. In addition, the Second Circuit has expressed a reference for policies that contain non-retaliation clauses and provide a qualified guarantee of confidentiality.

In determining whether an employer has exercised reasonable care in preventing and correcting harassment, courts look to whether the employer has actually enforced its harassment policies when responding to employee complaints. Thus, in addition to promulgating and publishing
a harassment policy, an employer must also vigorously enforce its policy.

Employee's Obligation to Avoid Harm

Regarding the second prong of the affirmative defense, as long as the reporting procedures in the policy are not unduly burdensome on the employee, courts are likely to find that it is unreasonable for an employee with knowledge of the policy to fail to utilize its procedures. Employees may try to claim that they were afraid to report harassment for fear of reprisal. Employers should be extremely careful that employees are not retaliated against in any manner for bringing forth a good faith complaint of sexual harassment. While courts have held that the employee must establish more than some vague or generalized fear, the ability of an employee to point to actual retaliation would almost certainly defeat the defense.

Broadening the Protection

Employers should note that that Ellerth-Faragher affirmative defense is not limited to sexual harassment cases, but extends to harassment cases of all types. Employers should, therefore, be certain to have a policy that prohibits all types of illegal harassment and not limit the policy to sexual harassment.