Potentially – a recent case shows that the Faragher/Ellerth defense may still be viable if the employee reports alleged harassment to her supervisor, but does not report the matter to higher-level management officials as directed by the employer’s anti-harassment policy.
The Faragher/Ellerth defense is one of the strongest tools available to employers to defeat hostile work environment harassment claims. It protects an employer from liability when the employer can show: (i) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
In Daniel v. Autozone, Inc., an employee sued her employer alleging claims for discrimination, retaliation, and hostile work environment harassment under Title VII. No. 1:13-cv-118 (N.D.N.Y. May 6, 2015). The employee alleged that soon after she started the job, other employees harassed her on a regular basis by making racially offensive statements and calling her derogatory names. The employee alleged that she reported the harassment to her direct supervisor, who did nothing about it, but no one else.
In response to the employee’s harassment claim, the employer raised the Faragher/Ellerth affirmative defense. The employer had a detailed harassment policy, which directed employees to first report alleged harassment to their supervisors. The policy also stated that if employees were not satisfied with their immediate supervisor’s response, they could direct their complaints to higher levels of management, including a 1-800 reporting number. Because it was undisputed that the plaintiff was aware of the policy and never followed its procedures, the court held that the employer was protected by the Faragher/Ellerth defense and dismissed the plaintiff’s harassment claim against the employer.
On the other hand, the individual defendants in the lawsuit – including the supervisor who allegedly did not respond to the employee’s complaints of harassment – were not so lucky. The court allowed claims to proceed against the individual defendants under 42 U.S.C. § 1981 and New York state law.
Takeaway: Anti-harassment policies should include multiple avenues for employees to report harassment, including the option for an employee to report to higher levels of management if a direct supervisor’s response is insufficient. The Daniel v. Autozone, Inc. case shows that this kind of policy will enable an employer to use the Faragher/Ellerth affirmative defense even if the employee reported alleged harassment to her direct supervisor, but did not otherwise follow the policy.