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LABOR AND EMPLOYMENT LITIGATION: THE FARAGHER-ELLERTH AFFIRMATIVE DEFENSE SHIELDS AN EMPLOYER FROM VICARIOUS LIABILITY FOR CLAIMS OF HOSTILE WORK ENVIRONMENT UNDER TITLE VII

Title VII of the Civil Rights Act of 1964 is a federal law which makes it unlawful to discriminate against a job applicant or employee based on their race, color, religion, sex, or national origin. This article provides an overview of the Faragher-Ellerth defense and how it can protect employers against claims for sexual harassment under TitleVII. Peter Mavrick is a Miami employment lawyer who has extensive experience dealing with Title VII claims of sexual harassment.

The Faragher-Ellerth defense comes from two landmark opinions delivered by the United States Supreme Court. The Supreme Court created the Faragher-Ellerth affirmative defense to provide employers a safe harbor from vicarious liability resulting from sexual harassment claims against a supervisory employee. The employer must satisfy two elements to successfully assert this defense: “(a) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775 (1998); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 765 (1998).

The United States Eleventh Circuit Court of Appeals in Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1296–97 (11th Cir. 2000), analyzed the Faragher-Ellerth defense in connection with a claim for sexual harassment under Title VII. In Madray, two female employees alleged Title VII hostile environment sexual harassment and claimed the employer should not be entitled to use the Faragher-Ellerth defense. The employer rebutted their argument and moved for summary judgment alleging it established the requirements under the Faragher-Ellerth defense.

The Court in Madray first sought to establish whether the employer exercised reasonable care to prevent and promptly correct any sexual harassing behavior. The employees alleged that the employer did not act with reasonable care and had notice of the harassment on several occasions prior to stopping the harassment. The employer had provided each employee with an anti-harassment policy outlining the alternative avenues to address sexual harassment claims in the workplace. In Ellerth, the Supreme Court held that dissemination of an employer’s anti-harassment policy was fundamental to meeting the requirement for exercising reasonable care in preventing sexual harassment.

The issue then turned on whether the employer took prompt corrective action and when the employer had actual notice of the alleged harassment. On several separate occasions, the employees had informally spoken with different mid-level managers regarding the alleged harassment. Appropriate remedial measures were taken once the employees properly reported the alleged harassment to the District Manager. Although the employees may have informally reached out to several mid-level managers, the employer’s sexual harassment policy instructed employees on how to seek redress for sexual harassment and specifically stated who the employees should contact. The mid-level managers were not authorized contacts under the employer’s policy. It was only when the employees properly sought redress from the District Manager (as provided by the employer’s policy) that action was promptly taken to stop the alleged harassment.

Of equal importance was whether the employees reasonably used preventative or corrective measures. Proof that an employee failed to fulfill her obligation of reasonable care to avoid harm includes an unreasonable failure to use any complaint procedure provided by the employer. Demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the Faragher-Ellerth defense. The employees in Madray admitted that they knew the appropriate complaint procedures and understood whom they should contact pursuant to the employer’s sexual harassment policy. Despite knowing exactly who they should contact regarding sexual harassment, the employees chose to informally complain to managers who were not authorized to receive such complaints under the employer’s sexual harassment policy. This conclusively established that the employees unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

After careful review of the federal trial court’s decision granting the employer’s motion for summary judgment, the federal appellate court affirmed the decision. The appellate court found that the employer promulgated an effective sexual harassment policy with appropriate complaint procedures, disseminated this information to its employees, and made a good-faith effort to enforce the policy. Therefore, the employer satisfied the standards for exercising reasonable care to prevent sexual harassment. The employer successfully asserted the Faragher-Ellerth affirmative defense and eliminated any liability for the alleged sexual harassment. Miami employment attorney Peter Mavrick has successfully defended many employers accused of sexual harassment and other claims of discrimination.

The Miami labor and employment litigation attorneys at the Mavrick Law Firm have successfully represented many clients in Florida hostile work environment cases in the Miami-Dade, Broward, and Palm Beach County areas encompassed by the Third and Fourth District Courts of Appeal, as well as Hillsborough, Sarasota, and other counties encompassed by the Second Circuit Court of Appeal.  This article does not serve as a substitute for legal advice tailored to a particular situation.  Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.

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