Your Defense to the Farragher / Ellerth Defense
Once you decide to sue your employer or former employer for sexual harassment, you deserve to know how to handle yourself during mediation, negotiations or trial if necessary. This means being prepared to offer evidence and explanations to back-up your claims, and poke holes in the other side’s defense. In New York City, your employer may defer to the Farragher/Ellerth Defense to deny liability for the harassment. However, you do not have to accept the F/E Defense and there are ways to fight back. Before you take action, consult a sexual harassment attorney in New York for information about the full scope of your rights.
Named after two 1998 Supreme Court cases, Ellerth, and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Faragher/Elerth Defense precludes employer liability in situations involving supervisor harassment. Basically, if your supervisor claims to have had an anti-harassment policy, asserts he or she followed the anti-harassment policy, and claims you did not follow the anti-harassment policy, your employer may say no compensation is owed to you.
Defending yourself against the F-E Defense
Say for good reason you did not adhere to company procedures regarding discrimination and workplace harassment and your employer uses the F/E Defense. In that case, you can employ two “defenses” to the F/E Defense. You can claim:
- You had a reasonable, well-founded, belief that you would be retaliated against for complaining and;
- From an objective point of view, it would have been useless to complain.
For example, you were afraid to bring a sexual harassment complaint to the Human Resources department because you knew a former employee was fired or demoted for a previous complaint. Or, your co-workers told you they complained to their supervisors and HR about harassment, and no corrective measures were taken — thus you found it useless to file charges. In another scenario, you may have been threatened with harm for reporting harassment.
Additionally, in instances where sexual harassment led to a tangible employment action — such as termination, failure to promote, failure to pay a raise, suspension, etc., — the F/E defense is not applicable. If you have additional questions about the F/E Defense, consult an attorney well-versed in New York sexual harassment laws.
You should also know that under New York City Law, the F/E defense does not apply at all if the harassment was committed by a supervisor or a supervisor knew of the harassment and failed to take appropriate action. Under the NYC law, your employer is automatically at fault for the harassment committed by a supervisor. NYC is one of the most employee protective laws in the world!
The Derek T. Smith Law Group, PLLC handles a multitude of cases that involve sexual harassment in New York City. For further information, please feel free to call us at 212-587-0760 or toll-free at 1-877-4NYLAWS or contact us online .