Do You Know Who Your 'Supervisors' Are?

The Supreme Court also recognized an affirmative defense in the Faragher and Ellerth cases, which is available where an employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and where the complaining employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or to avoid harm otherwise. Thus, an employer who successfully asserts the Faragher-Ellerth affirmative defense may be able to avoid liability for the sexually harassing conduct of its supervisors. Both elements of the defense must be satisfied for the employer to avoid liability. The defense is not available, however, where the complaining employee alleges that he or she suffered a “tangible employment action,” such as a termination, reduction in pay or demotion, as a consequence of the alleged sexual harassment.

As distinguished from cases of supervisory harassment, an employer may not be held liable for a sexually hostile environment created by a victim's co-worker unless the employer knew or should have known about the sexual harassment and failed to take appropriate corrective action. Accordingly, in assessing the potential for employer liability it is important to determine, in the first instance, whether the alleged harasser is properly classified as a supervisor or a co-worker for Title VII purposes.