Have your employees recently been trained on sexual harassment? Is your sexual harassment policy conspicuously posted? Does your policy have a reasonable complaint mechanism? If the answer is “no” to any of these questions, then you may be depriving your company of a defense to certain sexual harassment claims.
When an employer is sued by an employee alleging hostile work environment sexual harassment by a supervisor, the employer can defend against the claim if the employer can prove that: 1) the employer exercised reasonable care in preventing and correcting any sexual harassment; and 2) the employee unreasonably failed to take advantage of the preventative or corrective measures. Taking its name after the two Supreme Court cases where the affirmative defense was created, the defense is called the Faragher/Ellerth defense.
In Pullen v. Caddo Parish School Board, —F.3d —, 2016 WL 3923867 (5th Cir. July 20, 2016), the Fifth Circuit recently held that the Faragher/Ellerth defense was not available because, among other reasons, the employer had not recently trained its employees on sexual harassment. Continue reading