Know Your Burden - Avoid the "Faragher Ellerth" Affirmative Defense in Sexual Harassment Lawsuits

By Michele Moreno

The Supreme Court has held that an employer may avoid vicarious liability for sexual harassment committed by a supervisory employee, where there is no adverse employment action (i.e., termination or demotion), if the employer can demonstrate that: (1) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace (i.e. by implementing anti-harassment policies and offering a means for the employees to take action against harassers in accordance with those policies); and (2) the aggrieved employee unreasonably failed to take advantage of the employer’s preventive or corrective measures. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). This is referred to as the “Faragher Ellerth” defense.

Though the Second Circuit has expressly held that the “Faragher Ellerth” defense does not apply to claims brought under New York City Human Rights Law, the defense still applies to claims brought under Title VII, New York State Human Rights Law, and the New Jersey Law Against Discrimination. 

While this rule keeps employers on their toes, ensuring that they promptly and thoroughly investigate and correct complaints of discrimination or harassment, it also places the burden on victim employees to take affirmative steps in the midst of an already traumatic experience- a burden that many employees do not even know they bear.  

If you believe you are experiencing sexual harassment in the workplace, it is wise for you to speak to Human Resources or another company supervisor about the harassment, and avail yourself of any preventive or corrective measures that your employer provides to ensure that your claims are not barred.  You may also want to speak with an attorney. 

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