Hostile Work Environments and the Faragher/Ellerth Defense

by Joseph C. Maya on Feb. 21, 2024

Business Corporate Employment Lawsuit & Dispute  Litigation 

Summary: In a landmark case, the United States Supreme Court established the standard by which an employer could be held liable under Title VII of the Civil Rights Act of 1964 for the creation of a hostile work environment based on sexual harassment.  By way of background, Title VII is a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion, and is applicable to employers with 15 or more employees.

Title VII Lawsuit

The reach of Title VII was brought to the Supreme Court’s attention in 1998, when it decided Faragher v. Boca Raton.  In that case, Faragher worked part time as a lifeguard between 1985 and 1990, finally resigning in 1990.[1] In 1992, she brought an action against her immediate supervisors and the city and asserted claims under Title VII.

In her suit, Faragher alleged that her supervisors created a sexually hostile work environment by making lewd remarks and subjecting Faragher and other female lifeguards to unwanted and offensive touching.[2] The district court, considering evidence of a pattern of inappropriate conduct engaged in by Faragher’s supervisors, concluded that the conduct was “discriminatory harassment sufficiently serious to alter the conditions of Faragher’s employment and constitute an abusive working environment.”

The Court based its finding on three principles: “(1) the harassment was pervasive enough to support an inference that the City had ‘knowledge, or constructive knowledge’ of it; (2) the City was liable under traditional agency principles because [her supervisors] were acting as its agents when they committed the harassing acts; (3) Gordon’s knowledge of the harassment, combined with his inaction, ‘provides a further basis for imputing liability on the City.’”  The district court awarded Faragher one dollar in nominal damages.[3]

Employer Liability Under Title VII

The Eleventh Circuit Court of Appeals reversed the judgment against the city on appeal, based on its finding that the City had no actual or constructive knowledge of the harassment.

The case reached the United States Supreme Court, which reversed the decision of the Eleventh Circuit and reinstated judgment in favor of Faragher.  In reaching its conclusion, the Supreme Court set down bright line rules to determine the liability of an employer under Title VII when its employees have created a hostile sexual work environment.

First noting that in order to weed out complaints attacking ordinary “tribulations of the workplace,” the Court noted that in the past it had “made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.”[4] Undertaking a detailed analysis, the Court ultimately held that “[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.  When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.”[5] 

Defending a Hostile Work Environment Claim

Essentially, the Court provided for an employer to raise a defense to a claim of a hostile work environment, if the employer can show that it exercised reasonable care to prevent and correct any sexually harassing behavior, and second, that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. This created what has become known as the Faragher/Ellerth defense.

The Court, however, was unable to find any evidence tending to prove the affirmative defense.  Instead the Court found that Faragher’s supervisors “’were granted virtually unchecked authority’ over their subordinates.”[6]

With that, the Court established that an employer can be liable for discriminatory behavior by supervisory personnel.

The Faragher/Ellerth Defense

The Second Circuit Court of Appeals had an opportunity to apply and interpret the “Faragher defense”  in Gorzynski v. JetBlue Airways Corp., in 2010.  There, plaintiff Gorzynski brought an employment discrimination action against her employer JetBlue, alleging that she suffered a hostile work environment due to race, sex and age discrimination.  Pursuant to her employer’s sexual harassment policy, Gorzynski complained of the harassment to her supervisor, who also was her harasser.

The district court held that defendant JetBlue was entitled to the Faragher/Ellerth defense.  The Second Circuit found that while taken individually, the complained-of incidents may not have risen to the level of egregiousness necessary to prevail on a sexual harassment claim, “when taken together they do describe a work environment in which a jury could find that men, including Gorzynski’s supervisor, were able to – and did at will – comment inappropriately on women as sexual objects.”[7] 

Having found that Gorzynski established the existence of a hostile work environment, the Second Circuit next considered whether her employer could prove, by a preponderance of the evidence, the Faragher/Ellerth affirmative defense.  Rejecting a rigid reading of the Faragher rule, the Second Circuit held that “an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.”[8]

The Takeaway

The holding of this case applies to employees and employers in Connecticut, as the Second Circuit covers Connecticut, in addition to New York and Vermont.  The decision is important for several reasons, one of them being the notion that an employee’s sexual harassment claim will not fail for complaining of sexual harassment to the wrong person.  It also serves as a reminder to employees to become familiar with their company’s sexual harassment policy.

[1] Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998).

[2] Id. at 781.

[3] Id. at 783.

[4] Id. at 788.

[5] Id. at 807.

[6] Id.

[7] Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010).

[8] Id. at 105.

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