The Faragher-Ellerth Affirmative Defense

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.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on January 3, 2012, in Discrimination and Harassment and tagged . Bookmark the permalink. Leave a comment.

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