Second Circuit Holds That Employer Could Be Liable for Sexual Harassment Even Though Plaintiff Complained Only to Harasser
By Zachary D. Fasman and Alexander W. Wood
Ever since the United States Supreme Court decided Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), employers have had recourse to an affirmative defense to liability (the Faragher/Ellerth defense) in cases where a supervisor is guilty of sexual harassment but where no tangible employment action is taken against the plaintiff (e.g., demotion or discharge). In such cases, assuming that the plaintiff has otherwise proven sexual harassment (or a prima facie case on a motion for summary judgment), the employers defense requires proof by a preponderance of the evidence that (1) it exercised reasonable care to prevent and correct any harassment, and (2) the plaintiff unreasonably failed to make use of any preventive and corrective mechanisms provided by the employer or otherwise avoid the harm. The nature of the employers harassment policy is a key issue to both prongs of this defense, as an appropriate policy both shows the employers reasonable care to prevent or correct harassment, and such a policy also can form the basis for a claim that the plaintiffs failure to use the employers preventive and corrective mechanisms was unreasonable.