The Faragher-Ellerth Framework in the #MeToo Era

Mario Batali. Sen. Al Franken. Matt Lauer. Roy Moore. Charlie Rose. Kevin Spacey. Harvey Weinstein.

Unless you’ve been living under a rock for the past several months, it’s apparent what these high-profile names have in common. These are just some of the individuals who have been accused — some on multiple occasions — of engaging in sexual harassment or outright assault in recent weeks and months. The list will, undoubtedly, continue to grow.

In the wake of these high-profile sexual harassment accusations, the #MeToo movement has taken off. The social media movement features everyday people — predominantly women— posting #MeToo on social media to indicate they were sexually harassed or assaulted at some point in their lives. The goal of this hashtag is to draw attention to the magnitude of these problems, which are vastly underreported and often left unaddressed.

Many of these recent allegations have been raised years, or even decades, after the harassment allegedly occurred. Why have the victims waited so long to come forward? Many were afraid that coming forward would be career-ending (i.e., retaliatory). For others, coming forward was simply too embarrassing or gut-wrenching to rehash. Perhaps others felt that their complaints would be futile.

Unfortunately by remaining silent, those victims internalized the harm, and, in some cases, continued to endure further harassment by the same perpetrators. Their silence also may have enabled the perpetrators to harass other victims. It’s not blaming the victim; it’s simply an unintended consequence of being too frightened to share the truth, or at least share it in a timely fashion.

Outside of Hollywood and Washington, what can employers — and employees — learn from the #MeToo Movement? The answer: coming forward, and exposing such behavior as soon as it occurs, is a good thing — for everyone involved. The Supreme Court recognized this principle in two landmark decisions — Burlington Indus. Inc. v. Ellerth and Faragher v. City of Boca Raton[1]— nearly 20 years ago, and the sentiment has never been more relevant than it is today.

The Faragher-Ellerth Framework

Under the Faragher-Ellerth affirmative defense, the employer in a hostile work environment sexual harassment case may assert as an affirmative defense to vicarious liability, that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” provided that the employer has not taken an adverse tangible employment action against the plaintiff employee.[2] Keep in mind that the Faragher-Ellerth framework only applies to supervisor harassment claims, as harassment by co-workers is examined under a completely different standard.[3]

Under Faragher-Ellerth, the burden is on employers to enact well-drafted anti-harassment policies and complaint procedures. In addition, employees who believe that they are the victims of harassment are required to utilize the employer’s policy and procedures by promptly reporting allegations of harassment through the appropriate and delineated channels.

Faragher-Ellerth is not, as some critics have suggested, a get-out-of-jail-free card for employers facing sexual harassment complaints.[4] Instead, it operates to encourage employers to be proactive in preventing harassment and expeditious in investigating and correcting it when brought to their attention. And it encourages — if not outright requires — employees to report the harassment so that it can be remedied. Faragher-Ellerth only provides a defense to employers that took these reasonable steps, but yet weren’t notified of the harassment in time to do anything about it.

First Prong

For employers, exercise reasonable care to prevent and correct promptly any sexually harassing behavior.

Step One: Prevention. The Tennessee Supreme Court, in discussing the Faragher-Ellerth framework, has held that “[i]t is widely accepted that the existence of an anti-harassment policy weighs heavily in favor of a conclusion that an employer has exercised reasonable care to prevent harassment.”[5] The mere existence of an anti-harassment policy, however, does not conclusively establish that an employer has taken reasonable steps to prevent sexual harassment. On the contrary, an employer has the burden of establishing that anti-harassment policies are “reasonably designed and reasonably effectual.”[6] An employer may meet this burden by demonstrating that its anti-harassment policy is reasonably published, contains reasonable complaint procedures, and is not otherwise defective. In this vein, anti-harassment policies should: identify what types of behavior constitute sexual harassment, provide for a clear complaint procedure, inform the complaining party that their cooperation will likely be needed during the investigation, and state that retaliation will not be tolerated.

In addition to an anti-harassment policy, we recommend conducting regular training to advise and update employees on the policy. In our experience, live, in-person training tends to be more effective than a video or webinar. In light of recent events covered in the media, there are sure to be plenty of real-life examples to discuss at your next training.

These policies and training sessions offer an opportunity for employers to communicate the serious nature of sexual harassment, and the need for timely reporting, to their employees. After all, if the harassment is never reported, it can’t ever be stopped.

Step Two: Correction. Once a complaint has been made, the onus is on the employer to conduct a prompt and thorough investigation to ensure the harassment ceases. The most important part of the Faragher-Ellerth framework — for both employers and employees — is to ensure that the harassment ends.[7] Indeed, the Tennessee Supreme Court, in interpreting Faragher-Ellerth and its progeny, has held that “the duty to correct sexual harassment requires an employer to take reasonable steps to end and investigate alleged harassment.”[8] We recommend beginning the investigation as soon as practically possible after a complaint has been made. It will likely be necessary to interview all relevant witnesses to determine the veracity of the complaint. Finally, if the investigation reveals that the complainant’s allegations have merit, the harasser should be disciplined or even terminated if the circumstances warrant such action.

Second Prong

For employees, take advantage of the preventive or corrective opportunities provided to avoid harassment.

The affirmative defense only applies if plaintiff employee unreasonably fails to take advantage of the preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Thus, the Faragher-Ellerth framework encourages employees to follow those reporting procedures outlined in employers’ policies.

But, as discussed above, many victims don’t report the harassment (or at least do it much later) for fear of retaliation or that it won’t do any good. Understandable? Yes. But, as the Tennessee Supreme Court has instructed, “an employee’s duty to use an employer’s complaint procedure promptly is not alleviated by the employee’s speculative fear of retaliation or subjective belief in the futility of complaining.”[9]

As the Supreme Court held in Faragher and Ellerth, the inquiry focuses on whether the employee unreasonably failed to take advantage of preventive or corrective opportunities offered by the employer to avoid the harassment. Thus, the key is whether the employee’s failure to utilize the complaint procedure was reasonable. This means that “an employee’s failure to use an employer’s complaint procedure must be based on a ‘credible fear’ that any complaint would not be taken seriously or would result in retaliation.”[10] The best example of a “credible fear” would be past practice: if an employee had previously complained of sexual harassment and was retaliated against for the complaint or the complaint was summarily ignored by the employer.

Faragher-Ellerth: A Positive Framework for Everyone?

Yes. Above, we wrote that Faragher-Ellerth’s reporting requirement was good for everyone involved. Good for the employer. Good for the employee. And yes, maybe even good for the alleged harasser. Let us explain.

For the employer, the Faragher-Ellerth framework encourages harassment prevention through viable policies and training. If the harassment never occurs, all the more productive the working environment will be. It also encourages employees to report the harassing behavior to appropriate individuals identified by the employer. As we stated above, but it bears repeating, if employers are never notified of the harassment, they can’t do anything to ensure that it ceases. The fact that implementing these policies, under the right circumstances, may operate as an affirmative defense is only an added bonus for vigilant and proactive employers.

For employees, the Faragher-Ellerth framework encourages a work environment where reporting harassment is supported and retaliation is prohibited. The framework seeks to ensure that timely complaints lead to the cessation of the harassment. This benefits not only the current victim, but also potential future victims. Moreover, reporting the harassment gets it out in the open, meaning that victims no longer have to internalize the unwelcome behavior to which they have been subjected.

For the alleged harasser, the Faragher-Ellerth framework may provide an opportunity to address unwelcome behavior and “nip it in the bud” before it becomes an even larger problem. Reporting harassing comments may prevent a harasser from escalating his conduct to the physical stage. Reporting unwelcome physical touching may prevent a harasser from engaging in outright sexual assault. This obviously benefits the victim, but may also serve as a wake-up call to the harasser to correct his behavior before it intensifies.

Conclusion

The recent barrage of high-profile sexual harassment allegations should serve as a reminder (or perhaps a wake-up call) to those of us advising employers and employees in this current environment. For claims of supervisor harassment, FFaragher-Ellerth provides a workable structure that benefits both employers and employees. At its core, the Faragher-Ellerth framework encourages bringing complaints of sexual harassment to the attention of those who can do something to ensure that it ceases and prevent it from happening again. Faragher-Ellerth is more than an affirmative defense; it espouses practical principles, for both employers and employees alike, to ensure a more productive, harassment- free work environment.

Notes

  1. Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 807-808 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998).
  2. The Tennessee Supreme Court adopted the Faragher-Ellerth affirmative defense in Parker v. Warren Cty. Util. Dist., 2 S.W.3d 170, 177 (Tenn. 1999).
  3. Mullins v. Goodyear Tire & Rubber Co., 291 F. App’x 744, 746-47 (6th Cir. 2008) (“Hostile work environment cases make a distinction between sexual harassment caused by supervisors and sexual harassment caused by coworkers. When dealing with allegations of coworker sexual harassment, the “act of discrimination by the employer in such a case is not the harassment, but rather the inappropriate response to the charges of harassment. Goodyear moved for summary judgment on the final element, arguing that Mullins did not show that it was liable for Parker’s actions. In order for an employer to be liable for a coworker’s sexual harassment, a plaintiff must prove that the employer both (1) knew or should have known of the harassment, and (2) failed to take prompt and appropriate corrective action.”) (internal citations omitted).
  4. Mark Joseph Stern, “Who’s to Blame for America’s Sexual Harassment Nightmare?” Slate, Oct. 17, 2017, http://www.slate.com/articles/news_and_politics/jurisprudence/2017/10/blame_the_supreme_court_for_america_s_sexual_harassment_nightmare.html.
  5. Allen v. McPhee, 240 S.W.3d 803, 816 (Tenn. 2007).
  6. Id.
  7. Id. 815-816 (“Because it is clear from these facts that the State undertook an investigation to determine the truth of the accusations, disciplined McPhee, and, most importantly, effectively ended the harassment, we conclude that the State’s [*816] corrective actions were reasonable as a matter of law.”).
  8. Id. at 815.
  9. Id. at 817-818.
  10. Id. at 818.

Edward G. Philips EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is an associate with Kramer Rayson LLP in Knoxville where his primary areas of practice are labor and employment, and litigation. He earned a bachelor’s degree from the University of Tennessee and a law degree from UT College of Law in 2012.

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