The Faragher Ellerth affirmative defense is a valuable tool that can help employers avoid liability for alleged unlawful harassment.  The United States Supreme Court first articulated the defense in the companion cases of Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

The Faragher-Ellerth affirmative defense is available for claims of harassment under Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act when the employer can prove:

  1. That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
  2. That the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

For example, if an employer has a policy prohibiting harassment, and an employee unreasonably fails to report harassment under the policy, the Faragher-Ellerth affirmative defense may be available.