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Do Your Discrimination Policies Go Far Enough?

By Margaret A. McCausland, Esq.and Linda T. Jacobs, Esq.
October 01, 2003

Since 1998, when the United States Supreme Court issued what have become known as the Farragher and Ellerth cases, employers have been able to assert an affirmative defense to harassment cases that allege the creation of a hostile work environment by supervisory employees as long as the harassment did not result in a tangible job action for the complaining employee. The Ellerth Court offered as examples of a tangible job action “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761.

Prior to Farragher and Ellerth, employers were strictly liable (ie, the employer could not disclaim responsibility) in all cases of hostile environment harassment by a supervisor. In Farragher and Ellerth, however, the Supreme Court reasoned that employers should only be held strictly liable for the actions of a supervisory employee who was exercising his or her official authority; employers whose supervisory employee was acting without official authority should be permitted to raise an affirmative defense. In its simplest terms, that affirmative defense requires a showing that 1) the employee unreasonably failed to report the offensive conduct, despite an adequate reporting mechanism set forth in a well-publicized policy that clearly prohibited harassment; and, 2) the employer took prompt, remedial measures upon learning of the offensive conduct to ensure that it would not continue or be repeated.

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