The Supreme Court ruled in Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998) that an employer may assert as an affirmative defense to claims of sexual harassment that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by employer or to avoid harm otherwise. Two new court decisions illustrate exactly what this means.

A federal court in Mississippi has just issued a ruling which dealt with an employer's anti-harassment policy which provided that:  “If you feel you have been a victim of sexual harassment or any other form of harassment, or if you witness the harassment of others, you must immediately report your concerns with the Human Resources Department.”  The employer also provided employees with a confidential hotline with which to report violations of its policies or the law.

When the plaintiff began working for the company, she signed a statement acknowledging that she had “attended harassment training” and also that she understood the company’s anti-harassment policy. Shortly thereafter, a male co-worker allegedly began to make sexual advances and offensive comments to her, which she reported to her supervisor, but not to the HR department, as provided in the company policy. The supervisor took no steps to stop the harassment.

The Court granted summary judgment to the company, ruling that the woman acted unreasonably when she failed to report the harassment to the HR department, and failed to utilize the anonymous hotline to report the harassment.  The company was therefore able to assert successfully an affirmative defense based upon the holdings in Ellereth and Faragher.

In a second case arising out of New York City, a female corrections officer alleged that another officer repeatedly attempted to kiss her, physically interacted with her in overly familiar ways, made sexual comments about her body and clothing, and said to her “Why don't you let me make love to you four, five times so I can get it out of my system. Stop acting like you don't like me.”

The corrections department had a grievance procedure for employees who allege sexual harassment, but in this case the woman waited more than one year to file a grievance. The Court granted summary judgment against the woman on her Title VII claim, holding that the employer asserted a viable defense that she did not promptly report the harassing behavior. (Note to New York City employers and lawyers: because the New York City Human Rights Law precludes this affirmative defense, the Court denied summary judgment under this city law).

It is possible to defeat claims of sexual harassment if you follow the Ellerth and Faragher teaching about the available affirmative defense