What is an employer’s affirmative defense in a sex harassment case?

Affirmative Defense in a Sexual Harassment Case

The employer is automatically liable and has no defense if a supervisor’s harassment of an employee causes an adverse action such as termination, lost wages, or a suspension.

However, an employer does have a defense (known as a Faragher/Ellerth defense) if a supervisor creates a hostile work environment for an employee (but no adverse action is taken against the employee, like being fired).  Under this scenario, the employer may prevail if it proves:

• it reasonably tried to prevent and promptly correct the harassing behavior; and
• the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer

Finally, if the situation involves a co-worker (non-supervisory employee) harassing another employee, then the employer will be liable for the harassment if the employer knew, or should have known, about the hostile work environment and failed to promptly correct it.

Hiring an experienced, top-rated sexual harassment lawyer

Hiring a proven and effective advocate is critical to obtaining the maximum recovery in a sexual harassment case.  Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases.

His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain.  Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

Bachman writes frequently on topics related to promotion discrimination, harassment, and other employment discrimination issues at the Glass Ceiling Discrimination Blog.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.  Contact us today to find out how we can help you.

To schedule a preliminary consultation, click here or call us at (202) 769-1681.

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