Posted on August 7th, 2018
Are you confused about what affirmative defense against sexual harassment means for employers?
The topic can be tough to understand. Read on to learn everything you need to know about this sometimes confusing area of law.
A sexual harassment lawsuit can have a devastating impact on your company and could be severe stress on your business and personal life. If you are an employer, the actions of one bad apple could damage your entire company. You could have a lot to lose.
If you are facing allegations of a hostile work environment, you need to talk to your lawyer about whether you have an affirmative defense.
It is a possible way to avoid the devastating consequences of a sexual harassment suit.
What is an Affirmative Defense, Generally?
An affirmative defense means you have credible evidence which rules out criminal or civil liability. Even if your company is technically liable, you may avoid being held responsible.
For example, in a criminal case, a defendant can kill someone but still be not guilty by reason of insanity. Insanity is an affirmative defense. Insanity negates the ability to form intent, which is an essential element of the charge of murder.
Insanity is not an affirmative defense to the claim of sexual harassment, however. But a company can establish an affirmative defense if they show that they proactively took measures to create a compliant workplace.
Such measures will help dispute liability when someone alleges harassment.
What are the Components of a Sexual Harassment Claim in California?
California’s Fair Employment and Housing Act (FEHA) prohibits sexual harassment.
Sexual harassment in the workplace can mean:
- “quid pro quo” sexual harassment. This is when a supervisor or someone with authority attempts to trade preferential treatment at work for sexual favors; or
- a hostile work environment. This is where the entire workplace is hurt by “severe and pervasive” sexual overtures or comments.
Quid pro quo is where a boss tells someone who reports to him that if she doesn’t go on a date with him/her, she/he could get fired. It is also when a boss promises someone a promotion so long as she enters into a sexual relationship with him.
If the workplace has nude photos posted in cubicles, that can be a hostile work environment. If physical touching or sexual comments go unchecked, that can create a hostile work environment.
An employer may be able to use an affirmative defense in the case of a hostile work environment. However, you must meet some basic criteria.
What is the Affirmative Defense for Sexual Harassment?
Two Supreme Court cases created the affirmative defense in hostile work environment cases: Faragher v. The City of Boca Raton and Burlington Industries, Inc. v. Ellerth.
Now the strategy is called the Faragher-Ellerth Defense.
In order to successfully use this tactic, the employer must credibly establish the following three facts:
- The employer did not take any retaliatory action against the plaintiff. That means, the person bringing the lawsuit was not fired, demoted or otherwise punished for using the legal system.
- The employer used reasonable care to prevent this kind of behavior and tried to correct the behavior promptly after learning about it.
- The plaintiff did not take advantage of the preventative or corrective measures offered by the employer.
You must be able to assert all three elements of this defense if you want to use it successfully against a claim of sexual harassment.
Hypothetical Examples of the Affirmative Defense
Here is an example of a case where the employer can successfully assert this defense:
- A sales clerk tells the manager that her direct supervisor is groping her repeatedly while she is on duty.
- The manager calls the offending supervisor into the HR office and shows him the employee handbook which specifically prohibits this kind of behavior.
- He then suspends the supervisor for several days, warning him that if he continues with this kind of behavior he will be fired.
- A year later, there have been no repeats of the allegations, but the sales clerk files a sexual harassment suit against the manager.
Here, the company can assert the affirmative defense because the manager did not punish the sales clerk for making the initial complaint, he promptly disciplined the offending employee, and the plaintiff waited an unreasonable time to bring the suit.
On the other hand, below are examples where the affirmative defense would not stand:
- If, after making the complaint, the sales clerk was given fewer shifts or moved to the stockroom
- If the manager ignored her complaint or failed to investigate or discipline the manager
- If the sales clerk contacted a lawyer within a short time frame of making the complaint and failing to receive a satisfactory response.
How Can You Lay the Foundation for this Affirmative Defense
No employer wants to face a sexual harassment suit. A good attorney experienced in this area will advise that it is always better to establish certain protocols ahead of time.
That way, if your company is ever hit with such a claim, you can show that you took proactive measures to protect your employees.
One of the best items to put in place to prevent against this kind of legal action is a clear, well-drafted policies and procedures that address harassment specifically. Each employee will have clear instructions on what kinds of behaviors are not permitted in the workplace.
They will be informed what to do if they experience harassment, and what will happen if they are found to be the harasser.
You can also institute annual sexual harassment training for all employees. Courts see this as a proactive way of trying to preventing this kind of activity.
If you institute measures like a handbook and regular training, if you are sued for maintaining a hostile work environment you will have the building blocks for an affirmative defense.
Hire Representation Before It’s a Crisis
A skilled employment lawyer can help you put practices in place which will reduce the likelihood of sexual harassment and other discrimination cases. They can help you create an employee handbook, and establish procedures to follow when rules are broken.
With a strong legal foundation for your workplace processes, you may have the basis for an affirmative defense if that need should arise.
If you are facing or wish to prevent a sexual harassment or discrimination claim, contact us for more information.
You can get help defending your business from costly lawsuits.
