Federal law provides relief to employees who’ve been subjected to sexual harassment in their jobs. The cases are often difficult to defend because of the factual background and the implicit nature of the allegations. For employers, the cases can be very dangerous particularly when the employee claims that a supervisor is committing harassment. In certain situations, an employer may have an affirmative defense to the allegations directed against the supervisor.

Recently, a U.S. district court applied a doctrine that has come to be known as the Ellerth/Faragher affirmative defense and rendered a decision that could present significant problems for employers asserting the defense. Although the case was decided in Pennsylvania and isn’t binding in Connecticut, it presents one federal court’s application of the affirmative defense.

Affirmative defense

In cases that don’t involve a tangible employment action (such as hiring, firing, failure to promote, reassignment with different responsibilities, or decision causing a significant change in benefits), an employer can assert an affirmative defense to allegations of supervisory harassment. The U.S. Supreme Court’s Ellerth/Faragher defense, named after two landmark 1998 decisions, required the employer to prove by a preponderance of the evidence that:

1. it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and

2. the complaining employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

Your sexual harassment policy is on of the two elements necessary to your Ellerth/Faragher defense. This case, however, shows that not all courts apply that defense equally. Despite the courts’ inconsistencies, providing your employees with a comprehensive complaint procedure, including alternative means of reporting discrimination, is still your best defense.

We home you’ve promulgated an effective sexual harassment policy designed to encourage prompt complaints of harassment, swift and efficient investigations, and effective elimination of the conduct. The district court’s decision in this case may affect the provisions of your harassment policy and the obligations of an employee to take advantage of the corrective or preventative opportunities it provides.

Facts

Christine Hawk went to work part-time in June 1999. Within a month, she complained that she was subjected to harassment by her male supervisor. In August, she complained to another supervisor that someone was harassing her, but she didn’t want to discuss the matter further because she said she could handle the situation herself. She had no further discussions with the second supervisor. She finally complained to the employer’s human resources manager in March 2000.

The employer raised the affirmative defense to Hawk’s supervisory harassment complaint. The court’s decision addressed whether she had failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise. She didn’t complain to the HR manager until eight months after the harassment had allegedly begun. The employer argued that the delay clearly demonstrated the she didn’t take advantage of the preventive and corrective opportunities available to her. Therefore, the affirmative defense precluded it from being held liable.

Hawk argued that she hadn’t reported the harassment sooner because the harassing supervisor knew that she was a single parent who needed to continue working to support her child and that her supervisor “had control of the situation.” She also feared that if she complained about the harassment, she would be fired. As a result, she didn’t complain until March 2000.

Court’s decision

In denying the employer’s request to have the case thrown out without a trial, the court essentially agreed with Hawk and stated that her evidence at least presented a jury question about whether she had failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While not defeating the employer’s assertion of the affirmative defense, the court’s decision essentially creates an “excuse” for the employee’s failure to follow the reporting steps in the employer’s sexual harassment policy. Hawk v. Americold Logistics (E.D.P.A. 2003).

Impact on Connecticut Employers

This decision may have significant effect on your ability to raise the affirmative defense against allegations of supervisory harassment. Harassment victims often hesitate to come forward and report he conduct for many reasons, including the fear of retaliation by the employer or supervisor for making the complaint. Failure to come forward was often a problem for a complaining employee because of the impact failing to complain in a timely manner had the applicability of the affirmative defense. Implicitly, an employee who fails to complain in a timely manner will have difficultly proving that she took advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Hawk’s case, however, may excuse an employee’s failure to complain in a timely manner if she’ fearful of being fired as a result. That situation will most likely be involved in every harassment claim because there’s usually a fear of the alleged harasser. Thus, it seems that the court may have created a significant hurdle for employers to overcome when raising the affirmative defense to supervisory harassment.

Also, the court’s ruling may make it more difficult for you to remedy workplace harassment before litigation commences. If a victim doesn’t complain in a timely manner, you clearly lose an opportunity to discover harassment, conduct an investigation, and take the appropriate corrective action.

Because sexual harassment frequently involves only the harasser and the victim or isn’t publicly known within the workplace, you rely on the alleged victim’s complaints to assist in the investigation and correction of any alleged harassment. By failing to make a timely report, an alleged victim can effectively prevent you from taking steps to investigate – which could lead to correction of the harassment and avoidance of litigation. By apparently excusing the necessity for prompt complaints, the court’s decision may have a chilling effect on your ability to investigate harassment and correct it before the situation ends up in a courtroom.

Bottom Line

This case involved several different sexual harassment issues and the employer’s liability for that conduct. It determined that an employee’s (1) belief that a supervisor controlled the work situation and (2) fear of retaliation may excuse her failure to take advantage of preventive or corrective opportunities provided by the employer. That could have a drastic effect on your ability to prevail on the affirmative defense under the same circumstances.

You need prompt complaints to correct harassment in the workplace, and your coal should clearly be to operate a workplace free of any type of harassment. Therefore, you should make it clear in your harassment policy – and your responses to complaints – that retaliation for the complaints won’t be tolerated, thus removing the fear factor from your employees. Hopefully, you can then achieve the goal of prompt reporting by your employees so you can take the steps necessary to correct the harassment and avoid litigation.

Reprinted with permission of publisher. First appeared in Connecticut Employment Law Letter (May 2003). For subscription information, call (800)274-6774.