DEFENDING FLORIDA EMPLOYERS: AVOIDING VICARIOUS LIABILITY UNDER THE FARAGHER/ELLERTH AFFIRMATIVE DEFENSE

The American with Disabilities Act (ADA) prohibits discrimination in the “terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The United States Supreme Court has also found cognizable similar claims for hostile work environment under Title VII. Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). In cases where a current or former employee asserts such claims under the ADA or Title VII, an employer can avoid vicarious liability for a supervisor’s harassment by demonstrating the steps taken by the employer to prevent the harassment. This defense is commonly referred to as the Faragher/Ellerth affirmative defense, based on the Supreme Court cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

To be entitled to the Faragher/Ellerth affirmative defense, the employer must establish (1) that it “exercised reasonable care to prevent and correct promptly” any harassing behavior; and (2) that the plaintiff employee “unreasonably failed to take advantage of any preventive or corrective opportunities by the employer or to avoid harm otherwise.” Madray v. Publix Supermarkets, Inc., 298 F.3d 1290 (11th Cir. 2000). The employer bears the burden Because of establishing both of these elements. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305 (11th Cir. 2001).

Ordinarily, the Faragher/Ellerth affirmative defense is not available if the supervisor’s harassment culminates in “tangible employment action,” such as discharge or demotion. Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272 (11th Cir. 2003). However, an employer still may be able to assert and prove the Faragher/Ellerth affirmative defense where it is undisputed that the tangible employment action was for a legitimate reason and not based on a protected characteristic. In Walton v. Johnson & Johnson Servs., Inc., the Eleventh Circuit Court of Appeals concluded that a sexual harassment plaintiff’s discharge did not preclude the Faragher/Ellerth defense where it was undisputed that she was terminated “because she failed to return to work and that her gender played no motivating role in [her employer’s] decision.” 347 F.3d 1272 (11th Cir. 2003).

As to the first element of the Faragher/Ellerth affirmative defense, while an employer showing that they have a valid anti-harassment or anti-discrimination policy is generally sufficient for an employer to meet its burden of proof on this element, an employer does not always have to show that it has a formal sexual harassment policy. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305 (11th Cir. 2001). For example, in Lissau v. Southern Food Serv., 159 F.3d 177 (4th Cir. 1998), the court recognized that small employers may be able to show that they exercised reasonable care to prevent and correct sexual harassment through more informal complaint mechanisms. At the same time, an employer’s showing that it has a sexual harassment policy does not automatically satisfy its burden. For example, in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the court denied the employer the Faragher/Ellerth defense because although it had a sexual harassment policy, it had entirely failed to disseminate that policy. Regarding the second part of this first element of the Faragher/Ellerth defense, an employer need not act instantaneously, but it must act in a reasonably prompt manner to respond to the employee’s complaint. Madray v. Publix Supermarkets, Inc., 298 F.3d 1290 (11th Cir. 2000).

As to the second element of the Faragher/Ellerth defense, an employer’s showing that the plaintiff-employee failed to follow its complaint procedures will often satisfy its burden of proof. For example, in Coates v. Sundor Brands, Inc., the Eleventh Circuit Court of Appeals found that the inaction of an employees’ direct supervisor was not unreasonable, and therefore, the employer was not liable for sexual harassment. 164 F.3d 1361 (11th Cir. 1999). Coates ultimately did not find that the alleged incident placed the employer on notice that its employee was being sexually harassed, because the employee never mentioned sexual harassment during the supervisor’s inquiry into the matter. 164 F.3d 1361 (11th Cir. 1999). The employee also never lodged a sexual harassment complaint.

Similarly, in Madray v. Publix Supermarkets, Inc., the Eleventh Circuit Court of Appeals held that vague complaints to persons unauthorized by the employer’s policy to accept complaints constituted evidence that the employee unreasonably failed to take advantage of her employer’s complaint procedures. 298 F.3d 1290 (11th Cir. 2000). Thus, the employer will not be liable for sexual harassment claims under Title VII where there is an effective anti-harassment policy in place and the employee fails to follow the policy’s complaint procedures.

Peter Mavrick is a Fort Lauderdale employment lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.