The recent case of Crawford v. BNSF Railway Company illustrates when and how an employer can invoke the Ellerth/Faragher “affirmative defense” to avoid liability. Five mid-level supervisory employees claimed they were subjected to sexual and racial harassment by their supervisor. They endured the alleged harassment for months and then collectively filed an EEOC charge. Then, they reported the alleged harassment internally. As soon as they did, the employer initiated an investigation that resulted in the termination of the alleged harasser. The plaintiffs claimed they waited to report the conduct because they (a) feared retaliation and (b) wanted to build up evidence against the alleged harasser.
In response to the subsequent lawsuit, the employer invoked the affirmative defense. First it claimed it exercised reasonable care to prevent and promptly correct any harassing behavior. Next it claimed the employees “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.” Both the lower court and the Eighth Circuit agreed.
With respect to the first prong of the defense, the employer distributed and trained on a comprehensive anti-harassment policy that contained a specific complaint procedure for would-be victims to follow. Interestingly enough, the court held the plaintiffs needed to follow this procedure, notwithstanding the fact that the alleged harasser was himself a supervisor. Their claim that they did not because, in part, they wanted to collect more evidence against the alleged harasser was not a valid reason to delay reporting. Accordingly, the employer also satisfued the second (and typically harder to prove) prong of the defense.
The upshot: Have a comprehensive policy that outlines a specific complaint procedure. Distribute it to all employees and train them on it.