Do Your Discrimination Policies Go Far Enough?

Prior to Farragher and Ellerth, employers were strictly liable (ie, the employer could not disclaim responsibility) in all cases of hostile environment harassment by a supervisor. In Farragher and Ellerth, however, the Supreme Court reasoned that employers should only be held strictly liable for the actions of a supervisory employee who was exercising his or her official authority; employers whose supervisory employee was acting without official authority should be permitted to raise an affirmative defense. In its simplest terms, that affirmative defense requires a showing that 1) the employee unreasonably failed to report the offensive conduct, despite an adequate reporting mechanism set forth in a well-publicized policy that clearly prohibited harassment; and, 2) the employer took prompt, remedial measures upon learning of the offensive conduct to ensure that it would not continue or be repeated.

In the years since Farragher and Ellerth, numerous courts have been asked to decide whether or not constructive discharge (ie, the employee felt forced to resign because conditions were unbearable) is a tangible job action negating the employer's ability to raise the affirmative defense. The decided cases have had differing outcomes.