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By Janet Hugie Smith and Frederick R. Thaler
Consider the following scenario at ABC Company.

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

complaints of sexual harassment.

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.

About five months later, John grabbed Jane’s buttocks.

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-

Faragher/Ellerth decisions set up some guidelines.

Establishing the Faragher/Ellerth Affirmative Defense
In Faragher and Ellerth, the Supreme Court held that an employer may be vicariously

liable for sexual harassment by supervisors unless the company can establish a newly created

affirmative defense. This affirmative defense requires that:

(1) the employer exercise reasonable care to prevent and correct

promptly any sexually harassing behavior; and

(2) the plaintiff employee unreasonably fails to take advantage of any

preventive or corrective opportunities provided by the employer or to avoid harm


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

termination, demotion, undesirable reassignment, or other actions having an economic impact.

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

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report, the employer should not be liable for a subsequent sexually hostile work environment

which the employee could have prevented.

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

to establish what it did and what the employee failed to do.

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

answers to these questions.

The Employer’s Duties

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

existence of an anti-harassment policy is not necessary in every instance, the effective

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.

In Landrau Romero v. Caribbean Restaurants, Inc., 14 F. Supp. 2d 185, 192 (D.P.R.

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

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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.

One of the most successful ways of promulgating a written anti-harassment policy is

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

the first prong of the affirmative defense.

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

employers argue to satisfy the first prong of the affirmative defense?

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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

decisions. In addressing the standards articulated in Faragher/Ellerth, the Fourth Circuit

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

Faragher/Ellerth affirmative defense.

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


It is clear that complaint procedures in anti-harassment policies are essential. It should be

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

complaints. Several post-Faragher decisions favorably mention the existence of alternative

complaint channels designed to bypass errant supervisors.

Employers in the Tenth Circuit must ensure that their policies provide employees the

opportunity of bypassing direct supervisors and reporting harassment to other accessible

individuals. Policies should also specifically require supervisors or managers to report any

knowledge of any incident of harassment.

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In Wilson v. Tulsa Junior College, 164 F.3d 534 (10th Cir. 1998), the employer had an

anti-harassment policy that provided a “mechanism for bypassing a harassing supervisor by

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

the responsibilities, if any, of a supervisor who learns of an incident of harassment through

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)

or department(s) who handle such issues.

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

harassment to appropriate individuals or departments; (2) distribute these policies to employees

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

supervisors undergo such training.

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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

testimony on this issue.

The Employee’s Duties

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

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how employers can possibly avoid liability in Title VII cases.” Fierro v. Saks Fifth Ave., 13 F.

Supp. 2d 481 (S.D.N.Y. 1998).

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

liability by asserting the new affirmative defense?

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

alleged conduct constituted unreasonable failure by plaintiff to take advantage of preventive or

corrective opportunities provided by the employer.

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,

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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

to his or her employer.”


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

mechanism for the employee to bypass her errant supervisor.

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

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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


As more courts consider the Faragher/Ellerth affirmative defense, the responsibilities of

both employer and employee in preventing and correcting sexual harassment in the workplace

will continue to be clarified. At present, an employer’s best course of action is to promulgate

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

responsibilities of supervisors or management personnel who become aware of incidents of

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

and signed employee acknowledgments that address these situations as well.

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