Professional Documents
Culture Documents
ABC’s human resources officer reviews the company’s sexual harassment policy with a
new female employee (called “Jane”) on her first day of employment. Jane signs a form
acknowledging that she has received and read the policy, and understands it. The
acknowledgement provides that an employee agrees to immediately notify the company of any
On her second day of work, Jane’s male supervisor (called “John”) “looks her up and
down” in a “sexual way” that makes Jane feel uncomfortable. Over the next couple of weeks,
John tells several “dirty” jokes to Jane. She finds the humor offensive. Several weeks later,
John tells Jane that he likes the way she “looks from behind.” He later jokes that he “likes the
way her sweater fits.” Jane tells John that “these sorts of comments are vulgar and she wishes he
would not say such things.” The comments continued. John also comments on Jane’s sex life by
saying, “Did you get lucky last night?” Jane again protests.
Over the next two months John begins to rub Jane’s shoulders or “brush closely by her”
as he passes. Jane tells John she does not like this, and asks him to stop. John just laughs.
Jane reviews the sexual harassment policy which provides that complaints of sexual
harassment should be made to an employee’s immediate supervisor. The policy also states that if
the supervisor is the alleged harasser, or if for any reason the employee is uncomfortable
reporting to his/her immediate supervisor, the employee should report the matter to human
resources or the next individual up the chain of command. Jane is afraid to confront John again,
and she does not think anyone “will do anything about it” because John is “friends with
everybody, and they all know what he is like.” A week later, John snuggles up to Jane and
brushes her breasts. Jane immediately quits her job and sues.
Did ABC fulfill its duties and obligations in preventing sexual harassment in the work
place? Did Jane fulfill her obligations? Is ABC liable for the sexual harassment by John?
Although the Supreme Court began answering these questions on June 26, 1998 in the twin cases
of Faragher v. City of Boca Raton, 118 S.Ct. 275 (1998) and Burlington Industries, Inc. v.
Ellerth, 118 S.Ct. 2257 (1998), some questions remain unanswered. Several post-
liable for sexual harassment by supervisors unless the company can establish a newly created
otherwise.
The Supreme Court made clear that this newly formulated defense is not available where
the harassing supervisor discharges or demotes the employee, or otherwise takes tangible
employment action against the employee. Adverse tangible job action usually involves
The Supreme Court stated that the policy underlying this affirmative defense is to
encourage the creation of anti-harassment policies and effective grievance mechanisms and to
exempt employers from liability where an employee fails to report harassing conduct before it
becomes severe or pervasive. In explaining this, the Court said, “Title VII borrows from tort law
the avoidable consequences doctrine which supports the limitation of employer liability in
certain circumstances.” In other words, where an employee can avoid the creation of a hostile
work environment by reporting harassment before it becomes severe and pervasive, but fails to
#467634 2
report, the employer should not be liable for a subsequent sexually hostile work environment
With these new decisions, the Supreme Court has shifted the analysis applied to cases
involving claims of sexual harassment against a supervisor. Now, the responsibilities of both the
employer and employee are scrutinized. It is the employer, however, who now bears the burden
This new defense to supervisor sexual harassment can serve an important role in the
event of a lawsuit. As a result, employers need to ensure that they are always in a position to
make this defense. However, what exactly should employers do? How can an employer show
that it “exercised reasonable care to prevent and correct promptly any sexually harassing
behavior”? Further, if an employer does what it needs to do to claim this defense, what must an
employee fail to do for the employer to likely prevail? The courts have begun to deliver some
The first prong of the Faragher/Ellerth affirmative defense requires that the employer act
reasonably to prevent and correct the harassment. The Supreme Court stated that although the
promulgation of an anti-harassment policy satisfies the first prong. As a practical matter, anti-
harassment policies provide the most obvious means for complying with the first prong. While
analysis of anti-harassment policies under the affirmative defense is still in its infancy, courts
have consistently held that written anti-harassment policies may satisfy the first prong of the
affirmative defense.
1998), the plaintiff was involved in a management training program for Burger King
Restaurants. As part of his training, plaintiff was required to work at a local Burger King for
#467634 3
seven weeks in a non-management position. Plaintiff claimed that during his seven-week
training, he was sexually harassed by the store manager. Plaintiff made no complaints about the
harassment. Upon completion of his seven-week training, plaintiff attended a two-week training
course at the central offices. After this training, plaintiff was reassigned to the restaurant as an
assistant manager reporting to the same store manager. Plaintiff then quit, never reporting any
sexual harassment “because he was ashamed, and afraid that by doing so, he would not be able to
recover money owed to him.” In granting summary judgment for the employer, the court ruled
that the employer had met its burden under the first prong of the affirmative defense by
distributing a written sexual harassment policy on the first day of plaintiff’s employment. The
court also found that the second prong was satisfied by the employee’s failure to report.
through an employee handbook or policy manual. In Fiscus v. Triumph Group Operations, Inc.,
24 F.Supp.2d 1229 (D. Kan. 1998), two female employees alleged sexual harassment by two
male supervisors. In granting summary judgment for the employer, the court referred to the
Faragher/Ellerth affirmative defense and determined that the employer’s sexual harassment
policy contained in the employee handbook satisfied the first prong. It should be noted, that the
employers in both Fiscus and Landrau Romero also offered sexual harassment training. This
fact was mentioned by both courts and bolstered the argument that the employers had satisfied
In Faragher, the Supreme Court stated that “proof that an employer had promulgated an
anti-harassment policy is not necessary in every instance as a matter of law,” but what else can
#467634 4
The Fourth Circuit has indicated that an “open-door policy” may suffice. In Ocheltree v.
Scollon Prods., Inc., No. 97-2506, 1998 WL 482783 (4th Cir. Aug. 11, 1998), the Fourth Circuit
remanded a district court decision for further proceedings based on the Faragher/Ellerth
indicated that the employer’s “open-door policy, although informal and without any mention of
sexual harassment, may be dispositive” of reasonable care under the first prong of the
While at first glance, the Ocheltree case appears to benefit employers by liberally
construing what qualifies as reasonable care on the part of an employer, the case also
demonstrates the potential problems with an open-door policy. Specifically, the court noted that
the two owners/employers in Ocheltree failed to make themselves available when the plaintiff
visited their offices on numerous occasions. As a result, the court called the open-door policy
“ineffective” and implied that the open door policy, as administered, would not satisfy the first
prong.
noted that courts look with favor upon anti-harassment policies that provide multiple avenues for
complaints or, at least, provide the ability for employees to bypass direct supervisors with
Employers in the Tenth Circuit must ensure that their policies provide employees the
individuals. Policies should also specifically require supervisors or managers to report any
#467634 5
In Wilson v. Tulsa Junior College, 164 F.3d 534 (10th Cir. 1998), the employer had an
reporting the harassment to the Director of Personnel.” The policy also required supervisors to
report “formal complaints” to the Director of Civil Rights. The Tenth Circuit called the policy
deficient. First, the court found that the Director of Personnel was inaccessible to potential
complainants because his office was located in a separate building and he was not available at
night or on weekends when the alleged victim was working. Furthermore, the court stated that
the policy was deficient because it did not define “formal complaint” or “provide instruction on
informal means.” The court stated that, “A procedure that does not require a supervisor who has
knowledge of an incident of sexual harassment to report that information to those who are in a
position to take action falls short of that which might absolve an employer of liability.” This
sends a clear message that sexual harassment policies must require supervisors, managers, and
officers who have knowledge of sexual harassment to report that information to the individual(s)
In short, in order to meet the first prong of the Faragher/Ellerth defense, employers must:
(1) develop clear written policies against harassment which provide a number of avenues for
complaints and require supervisors, managers, and officers to report knowledge of sexual
by including them in handbooks, posting them on bulletin boards, setting them out in company
literature, training meetings, etc.; and (3) keep records of policy distribution. It is also advisable
to provide sexual harassment and workplace sensitivity training to employees and require that
#467634 6
Even if a company takes these steps, could an employee simply escape the net by arguing
that “he did not know of or remember seeing the policy”? In the few months following the
Faragher/Ellerth decisions, the “failing memory” argument was tried and rejected. In the
Landrau Romero decision discussed above, the plaintiff claimed that he recalled receiving no
sexual harassment training and was unaware of the employer’s sexual harassment policy.
Despite this, the employer’s records showed that Romero had completed the employer’s training
program which included a lecture on sexual harassment, and the employee had signed an
acknowledgement that he received the employer’s policies, including its sexual harassment
policy. Given these facts, the Landrau Romero Court summarily rejected plaintiff’s “lack of
memory” defense and held that no genuine issue of material fact had been created by plaintiff’s
The second prong of the new defense is that the employee unreasonably failed to avail
himself/herself of any corrective or preventive measures provided by the employer “or to avoid
harm otherwise.” The burden of showing the employee’s failure is on the employer.
In its Faragher and Ellerth holdings, the Supreme Court explained that an employee’s
failure to meet his or her obligation of reasonable care to prevent harm may be demonstrated in
various ways. When an employee fails to use the complaint procedure before the alleged
harassment becomes severe or pervasive, however, this is presumed to “satisfy the employer’s
burden under the second element of the defense.” One court articulated the reasoning behind the
second prong of the affirmative defense by stating, “[a]t some point, employees must be required
to accept responsibility for alerting their employers of the possibility of harassment. Without
such a requirement, it is difficult to see how Title VII’s deterrent purposes are to be served, or
#467634 7
how employers can possibly avoid liability in Title VII cases.” Fierro v. Saks Fifth Ave., 13 F.
When an employee believes he or she is being harassed, how long can the employee wait
to report the harassment to the company without running the risk of having the company escape
Several post-Faragher decisions have addressed this issue. In Montero v. AGCO Corp.,
19 F. Supp. 2d 1143 (E.D. Cal. 1998), the plaintiff contended that shortly after she started with
AGCO, her supervisor subjected her to a consistent pattern of offensive and unwanted sexual
behavior, both verbal and physical. After analyzing the Faragher/Ellerth holdings, the court
dismissed plaintiff’s claim finding that plaintiff’s waiting for nearly two years to report the
The same result was reached in Marsicano v. American Society of Safety Engineers, No.
97C7819, 1998 WL 603128 (N.D. Ill. Sept. 4, 1998). The plaintiff in Marsicano contended that
the alleged misconduct started on her second day on the job. She claimed that the alleged
harasser made suggestive comments that he was planning all kinds of “fun things” for them, that
he had left a packet of candies on her desk, and that he had made suggestive comments to her
while at lunch. Within seven days of her being hired for the job, the plaintiff advised her
supervisor of the alleged improper conduct. The court held, however, that plaintiff had not met
her obligation to report promptly the harassing conduct before it became severe or pervasive as
directed by the Supreme Court in its record decisions. Specifically, the court found that prior to
reporting the alleged improper conduct, the plaintiff had two separate opportunities to report the
alleged sexual harassment. The court held that by remaining silent under these circumstances,
#467634 8
the plaintiff unreasonably failed to take advantage of a corrective, and more importantly, a
preventive opportunity provided by her employer. Summary judgment was granted in favor of
the employer.
What if an employee claims that he or she failed to report the harassment because the
person to whom the reports are made was the harasser, or the employee did not trust that
particular individual? The fact that an employee does not trust a particular supervisor or
manager does not excuse an employee’s duty to report harassment if the policy provides multiple
channels of complaint. In Fierro v. Saks Fifth Ave., the employee claimed that fear of retaliation
was the basis of his failure to report harassment. The court stated that the employee’s
“generalized fears can never constitute reasonable grounds for an employee’s failure to complain
Conclusion
So what about Jane, John, and ABC Company? In determining whether ABC satisfied
the first prong of the Faragher/Ellerth affirmative defense, a court would consider several facts.
First, ABC distributed a written sexual harassment policy and required Jane to sign an
acknowledgement. These facts should be dispositive of ABC’s duty of reasonable care—the first
prong of the affirmative defense would most likely be satisfied. Another important fact,
however, would involve the complaint procedure outlined in the policy. Because Jane was being
harassed by a direct supervisor, a court could determine the policy deficient if there had been no
Most post-Faragher case law indicates that the employee in the fact scenario failed to
meet her burden under the second prong of the affirmative defense. The employee has a duty to
make timely complaints and take advantage of preventative or corrective opportunities provided
#467634 9
by the employer before the harassment becomes severe or pervasive. Jane appears to have failed
to meet this burden. Again, however, ABC’s complaint procedure requires consideration.
Although an employee’s generalized fears cannot constitute reasonable grounds for failure to
complain about sexual harassment, an employee may be excused from his/her duty to report
where procedures are unclear or supervisors and management personnel are inaccessible or
unreceptive.
both employer and employee in preventing and correcting sexual harassment in the workplace
clear sexual harassment policies with various, detailed avenues for complaints to all employees.
In addition, the employer should keep good records demonstrating that employees have received
and understand the employer’s sexual harassment policy. In accordance with Tenth Circuit law,
the employers should include instructions in the sexual harassment policy regarding the
sexual harassment. Finally, employers should be aware that the Tenth Circuit and other circuits
are applying the Faragher/Ellerth decisions to other types of harassment, like racially hostile
work environment claims. Accordingly, employers should ensure that they have written policies
#467634 10