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Employment & Labor Law FLASHPOINTS August 2019

August 15, 2019Print This Post Print This Post

Amanda Tiebert Collman, Robbins Schwartz, Chicago
312-332-7760 | E-Mail Amanda Tiebert Collman

A Roadmap for Successful Faragher-Ellerth Defenses

Within the employment discrimination context, employers are vicariously liable for unlawful sexual harassment committed by their supervisors against the supervisor’s subordinates. This liability cannot be avoided if the harassment is accompanied by an adverse employment action. However, in cases in which no adverse employment action occurs, an employer may avoid liability if it can establish an affirmative defense, such as the Faragher-Ellerth defense.

The Faragher-Ellerth affirmative defense is derived from two Supreme Court decisions (Faragher v. City of Boca Raton, 524 U.S. 775, 141 L.Ed.2d 662, 118 S.Ct. 2275 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 141 L.Ed.2d 633, 118 S.Ct. 2257 (1998)) and is based on the following elements:

  1. the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and

  2. the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

An employer will avoid liability if it can establish both of the above two elements by a preponderance of the evidence.

The Seventh Circuit’s decision in Hunt v. Wal-Mart Stores, Inc., No. 18-3403, 2019 WL 3369564 (7th Cir. July 26, 2019), provides litigants with a straightforward explanation of this defense complete with a practical assessment of the evidence presented by both the plaintiff and the defendant related to the defense’s two elements.

Element One — Employer Exercised Reasonable Care To Prevent and Correct Promptly Any Harassing Behavior

This element requires both preventative and corrective measures. The Equal Employment Opportunity Commission (EEOC), in its enforcement guidance, opines that “reasonable care generally requires an employer to establish, disseminate, and enforce an anti-harassment policy and complaint procedure and to take other reasonable steps to prevent and correct harassment.” EEOC, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors. According to the EEOC, the “other reasonable steps” include

  1. instructing supervisors to address or report complaints of harassment regardless of whether the supervisor is the individual officially designated to take complaints and regardless of whether a complaint conforms to the complaint procedure;

  2. correcting harassment regardless of whether a complaint is filed concerning the harassment if the conduct is clearly unwelcome;

  3. training supervisors on their responsibilities under the employer’s policy and complaint procedure;

  4. tracking supervisors’ conduct to ensure they execute their responsibilities under the anti-harassment program;

  5. screening applicants for supervisory jobs to determine whether they have a record of engaging in harassment; and

  6. maintaining records of all complaints of harassment.

In Hunt, the Seventh Circuit considered Wal-Mart’s actions and determined that no reasonable jury could find that Wal-Mart acted unreasonably — thereby establishing the first element of the affirmative defense. The court first examined Wal-Mart’s policy and found it sufficient to prevent harassment because

  1. its prohibition of discrimination and harassment was clear;

  2. it included examples of prohibited forms of harassment, which actually listed the conduct at issue, i.e., “repeated unwanted sexual flirtations, advances, or propositions”; and

  3. its options for reporting retaliation were robust.

In addition to maintaining effective preventative measures, the court found that Wal-Mart engaged in effective corrective efforts by conducting a “prompt and thorough” investigation of Hunt’s complaint. The supervisor to which Hunt reported to immediately sent the complaint form to Human Resources and, in response, the Human Resources Department on the same day directed the supervisor to investigate the matter. During the investigation, the supervisor met with Hunt and the alleged harasser separately on two different occasions to first gather information and then discuss the findings and course of action. The investigator asked Hunt to identify witnesses, but she declined to do so. The investigator concluded the investigation quickly and determined he was unable to substantiate Hunt’s complaint.

Notwithstanding this finding, the investigator nonetheless reiterated to Hunt’s supervisor the importance of a harassment-free workplace and directed him to retake Wal-Mart’s anti-harassment training. The Seventh Circuit found it compelling that Wal-Mart recommunicated its zero-tolerance policy to the alleged wrongdoer and retrained him despite finding no evidence to support Hunt’s complaint. The court determined that Wal-Mart did what a reasonable employer should in the circumstances, and that such was effective since Hunt did not allege any instances of continued sexual harassment following the investigation.

Significantly, the court noted that Hunt waived the argument that could have caused problems for Wal-Mart in asserting the Faragher-Ellerth defense. Namely, Hunt failed to argue at the district court level that her supervisor’s history of sexually harassing subordinates demonstrated that Wal-Mart’s responses to such conduct were deficient. The evidence in the record demonstrated that Hunt’s supervisor had sexually harassed a different employee less than a year before commencing his behavior toward Hunt — and had been reprimanded for such conduct. Part of the remedial action assessed against the supervisor was a transfer to the night shift, which is how he met Hunt. On the night shift, the supervisor was the highest-ranking employee and often alone with employees. The Seventh Circuit noted that this argument, had it been properly raised, would have had “force” as employers are responsible for closely monitoring employees who have histories of sexually harassing their subordinates. However, because Hunt failed to make this argument to the district court, it was waived on appeal.

Element Two — Employee Unreasonably Failed To Take Advantage of Preventive or Corrective Opportunities

Per the EEOC, this element is derived from the general principle that a victim has a duty to use reasonable means to avoid or minimize damages that result from statutory violations. The Seventh Circuit stressed that this element’s test is “functional” in nature and simply asks whether the employee adequately alerted her employer to the harassment. The test is not whether the employee followed the letter of the employer’s reporting procedure.

In Hunt, the court found that Wal-Mart met its burden of proof on this element by showing that Hunt failed to use any of Wal-Mart’s reporting procedures for four months, thereby preventing Wal-Mart from taking corrective measures. While Hunt presented various excuses for her failure to report, the Seventh Circuit deemed them insufficient to prove that she was “reasonable” in her inaction.

Hunt first argued that she did not report because she was unaware of Wal-Mart’s anonymous hotline and thought she had to report to her store manager. The Seventh Circuit determined that Hunt’s allegations were unsupported by the record as Wal-Mart’s sexual harassment policy included the anonymous hotline phone number and further stated that victims can report to any salaried employee with whom they are comfortable.

Hunt next argued that she did not report her supervisor’s conduct because she feared retaliation for doing so. The Seventh Circuit quickly disposed of this claim in light of its previous holdings that “an employee’s subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee’s duty to alert the employer to the allegedly hostile environment.” 2019 WL 3369564 at *5, quoting Porter v. Erie Foods International, Inc., 576 F.3d 629, 638 (7th Cir. 2009).

Notably, the EEOC, in its guidance, disagrees with the Seventh Circuit stating that an employer may not establish that an employee unreasonably failed to take advantage of corrective action if the employee had a reasonable fear of retaliation. In addition to reasonable fear of retaliation, the EEOC identifies the following as reasonable explanations for an employee’s failure to report or delay in reporting:

  1. obstacles to reporting, such as undue expense to the employee; and

  2. perception that the complaint procedure was ineffective.

Providing some assurance to employers, the EEOC explains that an employee’s complaint of harassment will not qualify as a true effort to avoid harm if the employee fails to provide information in support of his or her allegation, gave untruthful information, or refused to cooperate in the investigation.

For more information about employment and labor law, see EMPLOYMENT DISCRIMINATION: UNLAWFUL GROUNDS AND PREVENTION — 2019 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.


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