An affirmative defense employers may use to defend against claims of hostile work environment (www.practicallaw.com/4-502-5338) harassment by supervisors or their superiors (for more information, see Practice Note, Harassment (www.practicallaw.com/9-502-7844)). Employers may attempt to use the defense if:
No tangible adverse employment action was taken against the plaintiff (for example, discharge, demotion or undesirable reassignment).
The employer exercised reasonable care to prevent and promptly correct the harassing behavior. For example, harassment policies demonstrate reasonable care to prevent harassing behavior. For a model policy, see Standard Document, Anti-harassment Policy (www.practicallaw.com/7-501-6926).
The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm (for example, by not taking advantage of reporting procedures outlined in an anti-harassment policy).
The defense takes its name from the two US Supreme Court cases that created it:
Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
The Faragher-Ellerth defense is primarily used to defend against claims of hostile work environment sexual harassment, but has been applied to defend against claims of hostile work environment harassment on the basis of other protected classes (www.practicallaw.com/5-501-5857) as well.
The Faragher-Ellerth defense is recognized as a defense against harassment claims under Title VII of the Civil Rights Act of 1964 (www.practicallaw.com/0-501-7062) (Title VII) and by the equivalent law of many states, but has been rejected by at least one jurisdiction, New York City (see Zakrzewska v. The New Sch., 598 F. Supp. 2d 426 (S.D.N.Y. 2009) rejecting Faragher-Ellerth for purposes of sexual harassment claims under the New York City Human Rights Law).