Practice Areas

Investigations and the Faragher-Ellerth Affirmative Defense

Although laws like Title VII seek to make persons whole for injuries suffered on account of unlawful harassment, its primary objective is not to provide redress, but to avoid harm.  This means that the law gives employers many opportunities to avoid liability for the harassing conduct of their employees and supervisors, most significantly, when employers investigate and take steps to promptly correct any harassing behavior.

Consider harassment allegedly perpetrated by a supervisor.  Where the alleged harassment involves a supervisory employee, courts addressing a Title VII claim first look to whether the supervisor’s behavior culminated in a tangible employment action against the employee, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.  Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 765, 118 S. Ct. 2257,141 L. Ed. 2d. 633 (1998).  If the harassment resulted in an adverse employment action, the employer will be vicariously liable.  Id. 

When no adverse employment action is taken, however, a defending employer may avoid liability for a supervisor’s harassment if the employer can demonstrate that:

  • it took reasonable steps to prevent and promptly correct sexual harassment in the workplace, and
  • the aggrieved employee unreasonably failed to take advantage of the employer’s preventive or corrective measures.

This principle often is referred to as the “Faragher-Ellerth affirmative defense,” a reference to two 1998 United States Supreme Court decisions in which the Court established the defense.

Although there is no reference to investigations under either prong of the defense, investigations are crucial under both prongs if an employer wants to take advantage of the defense.

Under the first prong of the Faragher-Ellerth defense, an employer must establish that it exercised reasonable care in preventing and correcting any sexually harassing behavior.  Reasonable care includes training staff and supervisors and establishing reporting procedures.  The very presence of the second prong – that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise – means that an employer is not required to prove success in preventing harassing behavior to avoid vicarious liability, nor is it required, in all circumstances, to establish unreasonable conduct on the part of the employee in order to avoid vicarious liability.  Cajamarca v. Regal Entm’t Group, Civil Action No. 11 Civ. 2780 (BMC), 863 F.Supp.2d 237, 249, 252 (E.D.N.Y. May 31, 2012).  However, this means that an employer must take reasonable steps to promptly correct a hostile work environment once the employer has knowledge of its existence.  Id. at 252.  This includes investigation and issuance of appropriate, corrective remedies if harassment is found.

For example, in Cajamarca, the employer adopted appropriate training and reporting procedures, the plaintiff complied with those procedures for the most part, and the employer remedied the hostile work environment accordingly.  Because the incentives provided by the Faragher-Ellerth defense worked exactly as they were supposed to, the court saw no reason why the employer should be held vicariously liable for a hostile work environment solely because the employee reported it.  Id. 

Investigations are equally important under the second prong of the Faragher-Ellerth defense.  The second prong requires the employer to show that the employee unreasonably failed to take advantage of the employer’s harassment complaint procedures.  Ellerth, 524 U.S. at 765.  Evidence of “any unreasonable failure [by the employee] to use any complaint procedure provided by the employer . . . will normally suffice to satisfy the employer’s burden.”  Id. (emphasis added).  However, an employee’s “credible fear that her complaint would not be taken seriously” will overcome the employer’s burden.  Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999).  Such fear can be evidenced by proof that the employer has ignored or resisted similar complaints, see Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001), providing another reason for employers to investigate employee complaints in order to take advantage of the Faragher-Ellerth defense.


One final note: Although the Faragher-Ellerth defense was established in the context of hostile work environment sexual harassment, since the defense was established, it has been applied to defend against claims on the basis of other protected characteristics as well.  For this reason, employers should investigate all complaints of harassment, not just those premised on sex.