Sexual Harassment-Ellerth/Faragher Defense

In the recent Fifth Circuit case of Pullen v. Caddo Parish Sch. Bd., 830 F.3d 205 (5th Circuit 2016), the Court discussed the important Ellerth/Faragher defenses for employers created by the U.S. Supreme Court in those cases.  The following is a discussion of the Pullen case and those defenses.

In an employee’s sexual harassment suit against a school board under Title VII of the Civil Rights Act, there was a factual dispute as to whether the board was entitled to immunity under the Ellerth/Faragher defense from liability for alleged harassment by a purchasing department supervisor while the employee worked in that department. Normally an employer is strictly liable for a supervisor’s harassment of an individual whom he or she supervises. The Ellerth/Faragher affirmative defense is an exception and is available to employers where a plaintiff alleges sexual harassment by a supervisor but does not claim that the harassment resulted in a tangible employment action. The defense has two elements. First, the employer must show that it exercised reasonable care to prevent and correct sexual harassment. Second, it must establish that the employee unreasonably failed to take advantage of preventive or remedial opportunities provided by the employer. The employer bears the burden of proving both elements by a preponderance of the evidence. The first element focuses on the company’s conduct. An employer can satisfy the first prong of the Ellerth/Faragher defense by implementing suitable institutional policies and educational programs regarding sexual harassment. Both the harasser’s knowledge of the policy and the victim’s awareness of it (and of associated complaint procedures) are relevant to whether the company acted reasonably. A policy regarding sexual harassment is not necessary as a matter of law to prevail on the Ellerth/Faragher defense, but the Supreme Court has indicated that it is, in almost all cases, a relevant and important factor. Thus, a court’s inquiry usually focuses heavily on whether the employer promulgated a reasonably specific sexual-harassment policy and complaint procedure and whether it diligently investigated (and, where appropriate, remedied) alleged sexual harassment. The cases addressing whether a company has satisfied its burden on the first prong of the Ellerth/Faragher defense sort into two basic clusters. Where the plaintiff admits that he or she was on notice of a policy and complaint procedure and the court determines that the policy was reasonable, the first prong has consistently found to be satisfied. However, a defendant is not entitled to judgment as a matter of law on its Ellerth/Faragher defense when it has only a vague and general anti-discrimination policy without any mention of sexual harassment, the policy does not specify complaint procedures, and employees were not informed of the policy save for inconspicuous postings that the employees did not notice or read. And an employer’s failure to promulgate its policy to a given worksite means that its defense fails as a matter of law when raised against claims arising at that worksite. However, in this case, the employee offered evidence that the board’s sexual harassment policy was insufficiently publicized. A person is a supervisor for purposes of sexual-harassment law when he or she can take tangible employment action against the victim. A tangible employment action is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. The harasser’s status as a supervisor converts a negligence action into an action in strict liability. In closely analogous contexts—such as products-liability suits and tort actions in strict liability for injuries suffered from others’ abnormally dangerous activities—it is universally the plaintiff’s burden to establish the condition that triggers strict liability. In effect, showing that an individual was the plaintiff’s supervisor is an element of a strict-liability action for sexual harassment. The board could not be held liable for the purchasing department supervisor’s alleged harassment of the employee while she worked in a different department. The purchasing department supervisor could not affect the terms of the employee’s employment during that period and therefore was merely a coworker, and the employee did not preserve an argument that the board should have known about the harassment. The summary judgment for the board as to the period of alleged harassment when Pullen worked in the purchasing department was reversed. The summary judgment as to the period of alleged harassment after Pullen left the HR department was affirmed and the case was remanded.