An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence….The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
But should this two-pronged framework apply in single-instance harassment cases, or should employers be able to raise the so-called Ellerth/Faragher affirmative defense even if they can only satisfy the first prong? It is a question to has divided the few courts that have addressed the issue, and the recent opinion of the United States District Court for the Northern District of Indiana in Alalade v. AWS Assistance Corp., 2011 WL 2473617 (N.D. Ind. 2011), has only sharpened that split.
Alalade brought [an] action against AWS, her former employer, alleging Title VII claims for sexual harassment and retaliation, and a state law negligent retention claim….Her sexual harassment claim ar[ose] from a single severe incident of harassment: a sexual assault by her then supervisor, Samuel Ntawanda….Alalade’s claim [wa]s that Ntawanda’s sexual assault against her was severe enough to alone create a hostile work environment for her….
AWS thereafter brought a motion for summary judgment dismissing the complaint, claiming that there was not tangible job action taken against her. Under the first prong of the Ellerth/Faragher framework, AWS claimed that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” by isuing a written anti-harassment policy, promptly investigating Alalade’s report, and terminating Ntawanda. Under the second prong, “AWS argued that Alalade’s four-day delay in reporting the assault showed that she unreasonably failed to take advantage of any preventive or corrective opportunities.”
The judge found that there was a triable issue of fact as to whether “Alalade acted reasonably in waiting just a few days before reporting the incident” and thus denied AWS’s motion for summary judgment. AWS thereafter filed a motion for reconsideration, asserting that it was “not required to satisfy Ellerth/Faragher’ s second prong, despite the Supreme Court’s clear directive that both prongs are necessary elements of the defense.”
And AWS had some support for its position. In McCurdy v. Arkansas State Police, 375 F.3d 762, 772 (8th Cir. 2004), the Eight Circuit found Ellerth/Faragher’ s second prong inapplicable in single-instance harassment cases, concluding that
Denying such an employer an opportunity to avail itself of the affirmative defense, when the employer has done all that an employer could reasonably be expected to do to avoid and remedy the offending behavior, effectively creates strict liability for employers in a single incident case-contrary to the Supreme Court’s holding in Meritor.
And in Indest v. Freeman Decorating, Inc., 164 F.3d 258, 265 (5th Cir. 1999), the Fifth Circuit reached the same conclusion, holding that
for purposes of imposing vicarious liability, a case presenting only an incipient hostile environment corrected by prompt remedial action should be distinct from a case in which a company was never called upon to react to a supervisor’s protracted or extremely severe acts that created a hostile environment.
Judge Wiener, however, concurred in Indest, concluding that both prongs applied, and the EEOC later
agree[d] with Judge Wiener that Ellerth and Faragher do control the analysis in such cases, and that an employee’s prompt complaint to management forecloses the employer from proving the affirmative defense. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002, § IV.B n. 46 (June 18, 1999).
Moreover, in Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1026 (10th Cir. 2001), agreed with the EEOC, concluding that
there is no reason to believe that the “remarkably straightforward” framework outlined in Faragher and [ Ellerth ] does not control all cases in which a plaintiff employee seeks to hold his or her employer vicariously liable for a supervisor’s sexual harassment.
That takes us back to the Alalade, and I think that the Northern District of Indiana nailed the analysis in agreeing with the EEOC and the the Tenth Circuit. According to the court, the problem with dropping the second prong of the Ellerth/Faragher affirmative defense is that it ignores a key player in the harassment context: the employee. According to the court,
McCurdy and AWS fail to consider that the policy basis for Ellerth/Faragher is not limited to incentivizing employers to develop effective anti-harassment policies and grievance mechanisms. Ellerth/Faragher is also designed to incentivize employees in a way that delivers on Title VII’s “primary objective,” which is “not to provide redress but to avoid harm.”…
Indeed, Ellerth observed that the considerations relevant to determining the scope of employer liability for a supervisor’s harassment include Title VII’s deterrent purpose of “encourag[ing] employees to report harassing conduct before it becomes severe or pervasive.”…Likewise, Faragherobserved that the purpose behind the second prong is to incentivize employees to mitigate their damages by promptly reporting harassment…
Thus, “[b]y focusing only on what Ellerth/Faragher is designed to encourage employers to do, McCurdy and AWS ignore the policy concerns that animate Ellerth/Faragher’ s second prong, which concern the plaintiff’s duty to mitigate her damages.”