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

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.

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.

Eric Bachman litigates employment discrimination and whistleblower retaliation cases. He can be reached at (202) 769-1681 and [email protected] Bachman is Chair of the discrimination and retaliation Practices at Zuckerman Law. Previously, Bachman served as Special Litigation Counsel with the U.S. Department of Justice’s Civil Rights Division, and a Deputy Special Counsel with the U.S. Office of Special Counsel.