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 FARAGHER FRAMEWORK
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
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
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.