Fifth Circuit Clarifies Faragher Ellerth Requirements and Supervisor Status Burden

Practical Law Legal Update w-002-8644 (Approx. 5 pages)

Fifth Circuit Clarifies Faragher Ellerth Requirements and Supervisor Status Burden

by Practical Law Labor & Employment

Background

Kandice Pullen worked as a temporary clerical employee for the parish board. During a portion of her employment (February 2011 to June 2011, and February 2012 to May 2012) she was supervised by Timothy Graham. During another portion (May 2012 to July 2012), she had a different supervisor. Pullen was subject to unwanted advances and inappropriate comments by Graham during the period when Graham was her supervisor as well as during the period when he was not her supervisor.

In February 2013, another temporary clerical parish board employee claimed in an internal written complaint that Graham sexually harassed her and identified Pullen as someone who may have been sexually harassed as well. The parish board investigated and found that while Graham's conduct was not sexual harassment, it was inappropriate. Following the investigation, the parish board suspended Graham and required him to undergo counseling.

In March 2013, while the parish board was investigating the other employee's internal complaint, Pullen brought an EEOC charge claiming that Graham had sexually harassed her. In January 2014, she filed a sexual harassment lawsuit under Title VII against the parish board and initially named Graham as an individual defendant, but later dropped Graham in an amended complaint.

The district court granted summary judgment to the parish board, holding that:

Pullen's sexual harassment claim should be analyzed under two separate legal standards:
- one for the period in which Graham supervised Pullen; and
- one for the period he did not supervise her.
For the period that Graham was Pullen's supervisor, the parish board established the Faragher Ellerth defense because it produced evidence that:
- it had a detailed sexual-harassment policy that was posted on bulletin boards around its office and available online; and
- Pullen unreasonably failed to report the alleged harassment for over two years.
For the period that Graham was not Pullen's supervisor, Pullen had failed to show that the parish board's management knew or should have known about the alleged harassment.

Pullen appealed to the Fifth Circuit.

Outcome

The Fifth Circuit:

Reversed the district court's grant of summary judgment for the period that Graham was Pullen's supervisor.
Affirmed the district court's grant of summary judgment for the period that Graham was not Pullen's supervisor.

The Fifth Circuit held that:

The district court was correct in analyzing the case under two separate legal standards and distinguishing between the period when Graham supervised Pullen and the period when he did not.
The dual standard of analysis would not result in jury confusion.
The Faragher Ellerth defense could only apply for the period when Graham supervised Pullen, and not to the period when Graham did not supervise Pullen.
The Faragher Ellerth defense was not available to the parish board for the period that Graham supervised Pullen because there remained a genuine issue of fact regarding notice, specifically whether:
- employees received, saw and were trained on the parish board's sexual harassment policy;
- the policy was posted in a conspicuous location; and
- employees were aware that the policy existed.

The Fifth Circuit noted that:

The Faragher Ellerth defense is an exception to the rule that an employer is strictly liable for a supervisor's harassment and requires an employer to show that:
- it exercised reasonable care to prevent and correct sexual harassment; and
- the employee unreasonably failed to take advantage of preventive or remedial opportunities provided by the employer.
(Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 462 (5th Cir. 2013) (en banc).)
In Boh Bros., the Fifth Circuit held that an employer was not entitled to the Faragher Ellerth defense when:
- it had only a vague, general antidiscrimination policy that did not mention sexual harassment;
- the policy did not specify complaint procedures; and
- employees were not informed of the policy except for postings in the workplace that were not conspicuous.
(731 F.3d at 463-65.)
Other circuits have found that the Faragher Ellerth defense is unavailable where:
- the employer's anti-harassment policy was posted on a bulletin board and the plaintiff never received a copy of the policy (Harrison v. Eddy Potash, Inc., 158 F.3d 1371, 1377 (10th Cir. 1998));
- the policy was hung as a poster in the workplace but plaintiffs never received a copy of the policy and claimed never to have seen the poster (Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 21–22 (1st Cir. 2002)).

Practical Implications

The Fifth Circuit's decision in Pullen illustrates that:

Plaintiff's arguments about jury confusion related to the differing standards over the course of changing supervisory status of the alleged sexual harasser may not be persuasive.
The plaintiff in a sexual harassment case has the burden of proof to demonstrate supervisory status.
The Faragher Ellerth defense may not be available to an employer that did not:
- provide its sexual harassment policy to employees;
- train its employees on the policy; and
- post the policy in a conspicuous location.

Employers seeking to use the Faragher Ellerth defense in cases involved alleged harassment by a supervisor must make sure that their sexual harassment policy is:

Provided to employees.
Posted in a conspicuous location.
Used as a platform for training employees (especially supervisors) about sexual harassment and for making employees aware of what they must do (and to whom they must complain) if subject to sexual harassment in the workplace.

Fifth Circuit Clarifies Faragher Ellerth Requirements and Supervisor Status Burden | Practical Law