When Can The Faragher-Ellerth Defense Be Used To Protect Companies From Liability?

Two Supreme Court cases in 1998, Faragher and Ellerth have had long-lasting consequences regarding the standards of liability for an employer in sexual harassment claims against supervisors of the company. Courts have ruled that an employer can be held liable if they were aware of or should have been aware of the harassment. The Faragher-Ellerth Defense has been used by companies to defend against claims of sexual harassment if reasonable policies were in place, no employment action was taken and the employee failed to report the harassing conduct.
Both cases, Faragher and Ellerth were decided on the same day and the findings by the Supreme Court held that “an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” If the employee has not been demoted or discharged, the employer may use The Faragher-Ellerth Defense to avoid liability in some instances.

The employer must prove one of two things.

• Did they, the employer, take reasonable steps to prevent or correct any sexually harassing behavior?
• Did the employee fail to take preventive or corrective opportunities presented by the employer?

The employer must have taken reasonable steps to prevent or correct the conduct and then as a result, if the employee doesn’t take advantage of such preventive and corrective opportunities, the employer may be able to avoid liability by using this affirmative defense.

If a company has sexual harassment policies in place, this defense may be able to defend against sexual harassment claims. When a company has policies against certain behaviors it shows reasonable care in preventing sexual harassment. Further, if the employee in question has not been terminated or demoted, or has failed to report harassing conduct, the Faragher-Ellerth Defense may be used.

There are also many situations where this Defense does not apply and you should call to discuss your facts.
The Derek 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 800-807-2209 for a free consultation or contact us online.