A Little Background

In the famous Faragher and Ellerth cases decided in 1998, the US Supreme provided an employer with an affirmative defense to a sexual harassment claim involving a hostile work environment.  To take advantage of this defense, the employer must show that:  

 (a) it “exercised reasonable care to prevent and correct promptly any sexually

harassing behavior,” and (b) “the plaintiff employee unreasonably failed to take

advantage of any protective or corrective opportunities provided by the employer

or to avoid harm otherwise.”

However, it was held that this defense was not available where a supervisor had taken a “tangible employment action” against the complaining employee. The issue left open was whether a “constructive discharge” – i.e., where an employee quits alleging that the harassment she is suffering is so severe that no reasonable employee would have remained — constitutes a “tangible employment action.” 

The Supreme Court in the 2004 Suders case decided this issue, holding that a “constructive discharge” may or may not constitute a “tangible employment action,” but that an employer should be permitted to demonstrate that its acts were within the Faragher and Ellerth defense. The advice to employers after Suders was that they would be wise to provide appropriate anti-harassment training to managers and workers, institute and maintain zero tolerance policies, have an effective and disclosed internal complaint procedure in place, and undertake prompt investigations of complaints. 

A Recent Illustrative Case

A recent federal appeals court decision arising out of Wisconsin illustrates nicely how an employer can think that it has insulated itself within the protections of Faragher and Ellerth only to blow it when an actual complaint is filed. In this case, a jury found that employees suffered sexual harassment by a supervisor which constituted a hostile work environment. 

The Court, in reviewing the verdict, found that even though the employer indeed had an anti-harassment policy in place, a zero tolerance policy, anti-harassment training, and a policy of investigations of complaints (good work, employer, you did everything right!), nonetheless “the policy and complaint mechanism were not reasonably effective in practice.”  For example, evidence was presented at trial that the managers at the workplace failed to carry out their duties under the policy, that the employer failed to follow its own policies by ignoring the employees’ harassment complaints, by discouraging employees from reporting complaints, by providing inadequate anti-harassment training to supervisors,  and by failing to “promptly” investigate the complaints (poor follow through, employer!).  

Accordingly, the Court found that the Faragher and Ellerth defense was not available to the employer, and even held that punitive damages were appropriate against the employer. The Court underscored what all employers should learn: “Although the presence of a sexual harassment policy is encouraged by Title VII, ‘the mere creation of a sexual harassment policy will not shield a company from its responsibility to actively prevent sexual harassment in the workplace.’”