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Sexual Harassment in the Workplace

Harassment in the workplace 20 years after Faragher
By Davida S. Perry, Esq., and Brian Heller, Esq., Schwartz Perry & Heller

Sexual harassment continues to thrive in the workplace. In fact, 2018 has already been defined by a new culture of #MeToo, #TimesUp and chilling reports of sexual harassment and abuse by high-profile figures.
In 1998, in the twin cases of Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), the U.S. Supreme Court established a framework for how sexual harassment cases are to be analyzed under federal law.
The analysis, known as the Faragher framework, was intended to encourage employers to take steps to prevent sexual harassment and address complaints as they arise, and it rewarded employers for implementing such policies and procedures. In response, employers created anti-sexual harassment policies that they have oftentimes used as a shield against liability.
Although sexual harassment first became prohibited in 1964 when Title VII was enacted, for more than 30 years courts analyzed employer liability utilizing common law agency principles.
The framework established by these decisions was intended to resolve the conflict among competing agency principles, while at the same time effectuating the primary objective of Title VII to “avoid harm.”
At the outset, the Faragher framework distinguishes sexual harassment by a co-worker from harassment by a supervisor.
Where harassment is committed by a co-worker, the employer is liable if it knew or should have known about the harassment and failed to take appropriate action. When the harassment is perpetrated by a supervisor, however, the framework applies a different standard that takes into account the authority that the employer invests in the supervisor.
If the conduct of the supervisor results in a “tangible employment action,” such as hiring, firing, demotion or a significant change in responsibilities or benefits, the employer is strictly liable, since the employer puts its stamp on the supervisor’s actions.
Where the harassment is committed by a supervisor but there is no tangible employment action, the employer is presumed liable. However, the employer may assert an affirmative defense to escape liability, known as the Faragher defense.
The Faragher defense consists of two prongs, each of which must be proven by the employer: the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and the aggrieved employee unreasonably failed to take advantage of preventative or corrective opportunities available to avoid harm.
The purpose of the defense is to encourage employers to take steps to prevent and correct sexual harassment, while placing an obligation on victims to mitigate their harm by promptly reporting harassment.
The Faragher defense was supposed to be just that: an affirmative defense that an employer could take advantage of in certain limited situations. However, over the past two decades, applying the defense has proven to be problematic.
With regard to the first prong, what is “reasonable” or “effective” has been left wide open to interpretation. While the lower federal
The Faragher framework was intended to encourage employers to take steps to prevent sexual harassment and address complaints as they arise and rewarded employers for implementing such policies.
In time, it became clear that those principles did not provide a precise method for determining when an employer should be held responsible for wrongdoing.
For example, an employer was traditionally responsible for the acts of its supervisory personnel under the doctrine of respondeat superior (let the master be responsible for the wrongful acts of its employees acting within the scope of their employment).
Many employers began pushing back, attempting to evade culpability under the concept of “frolic and detour,” arguing that the employee’s wrongful conduct occurred outside the scope of the employment relationship and without benefiting the employer.
To address the conflict created by agency principles, the Supreme Court developed a new way to analyze employer liability in sexual harassment cases with its decisions in Faragher and Ellerth.
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