Employers: Do You Need A Refresher In The Ellerth-Faragher Affirmative Defense?

by Abbey Moland

Moland, Abigail
(402) 341-3070

Sexual harassment by supervisors presents special problems for employers. A recent decision out of the 8th Circuit Court of Appeals: Crawford v. BNSF Railway, Co., issued January 11, 2012, reiterates the importance of investigating and appropriately responding to employee claims against supervisors of harassment and discrimination. In order to establish the Ellerth-Faragher  “affirmative defense” when a supervisor is accused of harassment an employer must be able to show (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) that the employee(s) unreasonably failed to take advantage of any preventive or corrective opportunities (such as a grievance procedure).

In Crawford, a group of five plaintiffs (both male and female) alleged that a male supervisor subjected them to frequent sexual and racial harassment. The employer, BNSF, did not directly dispute the allegations, but instead argued the employees failed to timely complain about the supervisor’s conduct and that, once they finally did complain, the company responded promptly and effectively.

The district court granted summary judgment to the employer and the 8th Circuit ultimately affirmed. The court’s decision hinged on the employer’s ability to show that it acted reasonably to prevent and correct any sexually harassing behavior and the complaining employees failed to take advantage of the preventive and corrective opportunities offered by the employer.

Central to the court’s analysis was the fact that the employer maintained a zero-tolerance workplace harassment policy, and employees were required to promptly report offensive conduct through one of five channels, ranging from reporting to a direct supervisor to calling an anonymous employee hotline. Despite that, each of the employees failed to avail themselves of the policy.

Despite the fact that the employees contended that reporting to the hotline was useless because BNSF never took action on hotline complaints, the employer was able to produce hotline records to prove that every hotline complaint received was investigated and eventually closed. The records further showed that even when the company’s investigation failed to substantiate the complaint, the alleged harasser was counseled on the company’s anti-harassment policies. The 8th Circuit noted that while the complainants may have been dissatisfied with the resolution of certain complaints, “BNSF’s business judgment is owed some deference in evaluating its response to those calls.”

With regard to harassment by the male supervisor, upon first receiving actual notice of the plaintiffs’ complaints, BNSF placed the alleged harasser on administrative leave, investigated the complaints, and terminated the alleged harasser within two weeks. The court found these facts, coupled with the plaintiffs’ failure to take advantage of the complaint process or hotline, necessitated judgment in favor of the employer.

This case acts as a good reminder of what you can you do, as an employer, to ensure your policies are working to prevent discrimination and harassment in your workplace:

  • Adopt a workable policy. If you already have an anti-discrimination/harassment policy in place, make sure your employees are aware of that policy. Have your employees acknowledge, in writing, having received and read those policies. If you do not have a policy prohibiting harassment and discrimination in place, adopt one now!
  • Train your employees. Educating your employees, including supervisors, on how to recognize and report discrimination and harassment in the workplace will help ensure that your policies function as intended.
  • Investigate all complaints (and maintain a record of those investigations). When you receive a potential complaint of discrimination or harassment—no matter how trivial it might first appear—conduct an investigation. Although the seriousness of the complaint may warrant a more in-depth investigation, your record of investigating all complaints is crucial to your ability to assert the Ellerth-Faragher defense when supervisors are accused.
  • Take action AND follow up. This may include discipline, termination, or in some cases—where allegations cannot be substantiated—additional training and counseling to ensure employees are not only aware of their obligations under your policies, but also how to access reporting channels. Documenting whatever action you take is key to proving your commitment to preventing discrimination and harassment in the workplace.


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