Ellerth/Faragher Update No. 1

Here is the first batch of Ellerth/Faragher updates, and it covers the period from September 2004 through April 2005.  I do not catalogue every case to address the defense, instead noting only those cases that shed light on what makes an employer's compliance program effective. Consequently, I omit cases either that reach a summary conclusion without helpful analysis,  or that deny the affirmative defense because the employee had properly pursued the employer's compliance processes.  Also, while I note unpublished opinions from the courts of appeals, I report only published opinions from the district courts.

(These summaries are taken from a discussion I wrote as co-reporter for the Corporate Compliance Survey of the Corporate Compliance Committee of the ABA’s Business Law Section.  The Survey is to be publsihed in the August 2005 issue of The Business Lawyer.  My co-reporter for the Survey was Jean K. FitzSimon, co-Chair of the Corporate Compliance Committee, and Senior Vice President and General Counsel of Whitehall Jewellers.)

Harmon v. Home Depot USA Inc., 130 Fed. Appx. 902, 904 (9th Cir. 2005).  Upholding summary judgment for an employer that "had a written sexual harassment policy. The policy had several means for reporting harassment including a toll-free number employees could call anonymously. Employees were trained on the policy when they started work. Employees signed a form stating they were trained and understood [employer's] non-harassment policy."

Olson v. Lowe's Home Centers Inc., 130 Fed. Appx. 380, 389 (11th Cir. 2005).  The employer took reasonable care to prevent harassment "by promulgating and effectively disseminating several fairly extensive anti-harassment policies to employees [that] enabled employees to bypass harassing supervisors and provided several different avenues for employees to report sexual harassment." The employer, however, was not entitled to summary judgment on its affirmative defense because a fact issue existed on whether the employee unreasonably failed to pursue employer's processes.

Clark v. United Parcel Service, Inc., 400 F.3d 341, 349-50 (6th Cir. 2005).  The employer's sexual harassment policy was sufficient because it at least "(1) require[d] supervisors to report incidents of sexual harassment; (2) permit[ted] both informal and formal complaints of harassment to be made; (3) provide[d] a mechanism for bypassing a harassing supervisor when making a complaint; and (4) and provide[d] for training regarding the policy." The employer, however, was not entitled to summary judgment on its affirmative defense because of fact issues regarding the reasonableness of its response to the harassment report.

Loughman v. Malnati Organization Inc., 395 F.3d 404, 407 (7th Cir. 2005).  Overturning summary judgment for the employer on the Ellerth/Faragher affirmative defense because first, simply securing the harasser's verbal assurance of no further harassment might be inadequate response to physical harassment, and second, "consistent stream of harassment . . . suggests that [employer's] policy was actually not very effective at all."

Hesse v. Avis Rent A Car System, Inc., 394 F.3d 624, 630-31 (8th Cir. 2005).  Evidence of the employer's corrective actions warranted summary judgment for employer on affirmative defense.

Petrosino v. Bell Atlantic, 385 F.3d 210, 226 (2d Cir. 2004).  While the employer had a sexual harassment policy and a reporting hotline, the employee raised a fact question about effectiveness of these measures by offering evidence that hotline operator refused her request to speak with a female counselor and then failed to investigate her claim.

Presley v. Pepperidge Farm, Inc., 356 F. Supp. 2d 109, 128 (D. Conn. 2005).  The employer had an adequate harassment policy because it had "posted written copies of the policy in multiple locations in the plant where [the alleged victim] worked[; the employer] informed newly hired employees of the policy during their orientation[; and] human resource officials walked around the floor of the plant to make themselves more accessible to employees." This was so even though "there were multiple versions of the policy in circulation at the time of" the alleged harassment because "all versions of the policy before the court prohibit any kind of sexual harassment, instruct employees to whom they can complain, assure that the company will take prompt and appropriate action, promise confidentiality, and ensure that employees will not be penalized or retaliated against for filing a complaint." However, a genuine issue of material fact existed as to whether the policy was adequately enforced.

Miller v. Edward Jones & Co., 355 F. Supp. 2d 629, 639 (D. Conn. 2005).  Even though the employer adequately investigated the harassment complaint, a fact issue prevented summary judgment on the Ellerth/Faragher defense because the employee claimed that "the company offered her no alternative other than to return to work in a two-person office alone with the man (her supervisor) who was continually harassing her."

Jones v. District of Columbia, 346 F. Supp. 2d 25, 48-49 (D. D.C. 2004).  The employer satisfied the first element of the Ellerth/Faragher defense because it "did have a written anti-harassment policy with complaint procedure, a copy of which was provided to [the alleged victim] during her training-before she began working at [the employer's workplace]. [The employer] took immediate corrective action upon receipt of [the] harassment complaint, issuing cease and desist letters to prevent further contact between [the alleged harasser and victim], and beginning an investigation into [the] allegations."

Talamantes v. Berkeley County School Dist., 340 F. Supp. 2d 684, 697 (D. S.C. 2004). A school district was found to have a reasonable sexual harassment policy because it: "adopted policies that prohibit sexual harassment and provided a complaint procedure that permits an alleged victim of harassment by a supervisor to bypass the supervisor with a complaint or grievance"; "[t]he policy expressly prohibits the type of conduct [the employee] alleges: physical conduct of a sexual nature, offensive comments or slurs, and visual harassment"; "[t]he policy also requires administrators to initiate a prompt investigation once they receive a complaint"; "the policy is distributed to . . . employees during their initial employment and annual orientation"; "supervisory employees, including custodial supervisors, receive sexual harassment training on an annual basis through memos and formal presentations"; and "[t]he policies themselves are available in the principal's office in every school in the District . . . as well as on the District's Internet website." Also, the court rejected the employee's claim that she was unaware of the employer's policy because the employee submitted a sexual harassment complaint in the form and manner prescribed by the policy.

Boyd v. Snow, 335 F. Supp. 2d 28, 36 (D. D.C. 2004).  A fact issue prevented summary judgment on the Ellerth/Faragher defense because of evidence that, among other things, the employer "did not offer to remove [the alleged victim] from the allegedly abusive environment."

Oleyar v. County of Durham, 336 F. Supp. 2d 512, 519 (M.D. N.C. 2004).  The employer "exercised reasonable care to prevent and promptly correct harassing behavior through an anti-discrimination policy of which [alleged victim] was apprized [sic]."