'An Ounce Of Prevention Is Worth A Pound Of Cure'

In 1998, the Supreme Court reminded employers that “an ounce of prevention is worth a pound of cure.” Today, as a result of Faragher v. City of Boca Raton, 524 U.S. 775 (1998), Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and the many cases that followed, in-house counsel are responsible for ensuring that their companies avoid harassment and, if it unfortunately occurs, what steps can be taken to preserve the Faragher/Ellerth affirmative defense. The Faragher/Ellerth affirmative defense protects the employer from liability for harassment that does not result in a tangible employment action if the employer can demonstrate that: i) it took reasonable steps both to prevent sexual harassment and to remedy the sexually harassing conduct promptly once it was brought to the employer's attention; and ii) the harassed employee unreasonably failed to avail himself or herself of any corrective or preventive opportunities made available by the employer. Faragher at 807, Ellerth at 765. Although these companion cases dealt with sexual harassment, the holding has been expanded to all hostile work environment claims. (See, eg, Walsh v. National Computer Systems, Inc., 332 F.3d 1150 (8th Cir. 2003) (pregnancy); Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001) (race)).