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.