Does The So-Called Faragher-Ellerth Defense For Employers Still Exist?
Overview of The Faragher-Ellerth Defense
In 1998, the United States Supreme Court weighed in on two landmark decisions in the cases of Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
These cases are widely known for establishing a couple of basic legal principles around employer liability in cases involving sexual harassment and/or discrimination in the workplace. These principles include establishing strict liability against employers for tangible employment actions that occur because of sexual harassment or discrimination. Another of these key principles afforded an affirmative defense for employers if the employer did the following five things:
1. Establish/distribute policies against sexual harassment and discrimination.
2. Provide employees complaint procedures for potential issues of sexual harassment and discrimination.
3. Provide employees training around sexual harassment and discrimination in the workplace.
4. Timely investigate issues of sexual harassment and discrimination.
5. Taking prompt remedial action to correct matters of sexual harassment and discrimination in the workplace.
Questions Raised by the Faragher-Ellerth Defense and Other Legislative Actions
As many jurisdictions around the nation have been reacting legislatively to the #MeToo movement, some of this legislative action has raised the question as to whether these new laws have been decaying the affirmative defense available to employers. While some jurisdictions such as New York have recently changed their standards of what constitutes a claim of sexual harassment or discrimination.
The majority of states still actively recognize the affirmative defense. Many states have changed the standards under which employers can find defenses to possible claims by taking reasonable action to proactively educate their employees and react to claims as they arise.
A key element of this defense being a possibility and one of increasing legislative focus is that of employers providing effective training. EEO Training is proud to provide an industry-leading quality training with an exclusive focus on this topic. For more information, please contact www.eeo-training.com.