In 1998, the United States Supreme Court created an affirmative defense for employers who have been sued for discrimination or harassment and who can show that "(1) the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior; and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." This defense, which is known as the Faragher-Ellerth defense, has been adopted by the New Mexico Supreme Court for determining employer liability under the New Mexico Human Rights Act. While this defense has been available to employers for some time, there are best practices that employers can take to help preserve the defense for potential litigation as it is the employer's burden to prove that the defense applies.
One way to preserve the defense is to ensure that employers exercise "reasonable care to prevent and correct promptly any . . . harassing behavior." This requires the existence of a legitimate anti-harassment policy as well as implementation and enforcement of that policy. To help prove that an employer exercised reasonable care to prevent and correct any harassing behavior, it is important to regularly train and/or remind employees about the importance of the policy and to keep records of all training that employees receive on the policy, all emails or memoranda that are sent to employees reminding them of the policy, and any other measures that the employer takes to implement the policy. Some ways to document the implementation of an anti-harassment and anti-discrimination policy include annually requiring employees to sign an acknowledgment form regarding the policy, periodically sending emails regarding the policy with read receipts required, and providing training (at which employees sign-in) regarding the policy.
Another way to in preserve the defense is to ensure that employees are aware of not only the existence and importance of the policy, but also of the way in which they can report perceived harassment or discrimination. This includes providing detailed guidelines for reporting incidents and detailed guidelines regarding the investigation process following a reported incident. If an employer provides multiple avenues through which an employee can report harassment, it is much more difficult for an employee to claim that he or she did not think that there was anyone to whom he or she could have reported harassment. Best practices include making clear that employees can report harassment and discrimination to any supervisor or to Human Resources and providing one or more ways in which an employee can make an anonymous complaint (in writing or by phone). Policies that provide that harassment may only be reported to one particular person could preclude application of the Faragher-Ellerth defense if the person the employee is required to report to is the one accused of harassing the employee or if the employee can show that reporting to that person would be futile (perhaps due to a close relationship between the alleged harasser and the person to whom harassment claims must be made).
Some ways in which employers can help prevent a claim that an employee was unaware of the reporting avenues include posting the reporting guidelines in a conspicuous place, providing employees with information cards containing phone numbers they can call to report harassment, and including the reporting process in training, policies, and other communications about the company's anti-harassment policy. The more ways in which an employee can report harassment, and the more visible those methods of reporting are to employees, the easier it is to prove that an employee's failure to report harassment was unreasonable.
The Faragher/Ellerth defense is not available in every discrimination or harassment claim. But for those cases in which it is available, it can provide a complete defense to employer liability. Following the measures outlined above will help in proving the defense, and should also help to prevent harassment and discrimination.