The Ellerth and Faragher Affirmative Defense

Workplace Harassment and the Law against It
It may extend to any unwelcome or exploitative treatment based on an irrelevant trait of the person in the employment.

Inappropriate jokes, slurs, name-calling, physical assaults or threats, intimidation, ridicule, insults, and offensive photos are all examples of harassing behavior. Workplace harassment does not have to be sexual, and it does not have to be between employees of the same gender.

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Workplace harassment is recognized as a form of employment discrimination. It is explicitly prohibited through the Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA).

Even retaliation against any complaint against any harassment or discrimination charge is considered as harassment or discrimination. Petty comments, jokes, annoyances, or isolated events do not constitute harassment.

The duty of prevention of harassment is on the employers. The employers must set up mechanisms for the employees to report and get their grievances redressed. The employees also must duly report any instance of harassment. The employer is anyway vicariously liable for any instance of harassment of any employee.

The Ellerth and Faragher Cases
The Ellerth and Faragher cases are two landmark cases relating to workplace harassment. Both the cases are usually considered alongside as they resulted in a reliable test for determining the employer’s liability in cases of harassment alleged by an employee against a supervisor. Burlington Industries, Inc. v. Ellerth: In this case, Kimberly Ellerth, a female employee of Burlington Industries Inc., sued the company for sexual harassment by one of the company’s supervisors. They charged the Vice-president of sales for making sexual remarks and unwelcome advances. They also alleged that the lady was threatened that they would deny the deserving job benefits if the lady did not agree to the sexual favors asked by the supervisor. The trial court dismissed that the claim as there was no actual loss of any tangible job benefit. However, the Seventh Circuit Court of Appeals and the Supreme Court overturned the trial court’s judgment. It held that an employee might get compensation from the employer if the employee suffered harassment and even if there is no loss of any tangible benefit, but the employer has an affirmative defense. Faragher v City of Boca Raton: In this case, Beth Ann Faragher, a lifeguard employed by the City of Boca Raton, alleged that two supervising lifeguards made sexual remarks and unwelcome advances. The City of Boca Raton argued that it has a sexual harassment policy that Faragher could have used. However, it was found that the policy was not distributed to the employees of the Faragher’s department, also, the policy was ineffective as the complaint would be made to the supervisors.

Ellerth and Faragher Affirmative Defense
These cases established the Ellerth and Faragher affirmative defense for the employers to defend against the claims of harassment by the employees against supervisors. The employer is held vicariously liable for any harassment of the employees done by any supervisor. The Ellerth and Faragher affirmative defense provides for a defense to the employers in such cases. The Ellerth and Faragher affirmative defense is a two-pronged defense against claims of harassment. This means that the employer needs two prove two facts for the defense to apply and mitigate the employee’s claims. First, the employer needs to prove that they have taken reasonable care to prevent, control, and redress any harassing behavior. The employer needs to have a harassment policy and a complaint procedure to prove the first fact usually. Second, the employer must show that the employee did not take advantage of the employer’s preventive and corrective processes. The employer needs to have set up certain mechanisms for preventing and correcting harassing behavior, and the employee must not have made use of such mechanisms. If the employer can prove these two facts, he/she cannot be held liable for any harassment claim by an employee.

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