Liability in Workplace Sexual Harassment
The United States Court of Appeals for the Second Circuit (that includes Connecticut and New York) addressed for the first time whether the so-called Faragher/Ellerth affirmative defense is available when an alleged sexual harassment attacker holds a sufficiently high position within an organization so as to be considered the organization’s proxy or alter ego. The Second Circuit joined the other Circuits that have considered the issue in concluding that under those circumstances, the affirmative defense was unavailable to the employer.
By way of background, Faragher/Ellerth held that a company could escape vicarious liability for sexual harassment by taking certain steps directed toward reporting and eradicating sexual harassment in the workplace. Left open was the issue of the employer’s direct liability where the actor was deemed to be the proxy/alter ego of the company. Under that doctrine, an employer is liable in its own right for wrongful harassing conduct, as opposed to being vicariously liable for the actions of company agents.
A Company’s Proxy or Alter Ego
But who is the company’s proxy or alter ego? Prior cases clearly place the company president and other sufficiently senior corporate officers within that category, and refer to “that class of an organization’s officials who may be treated as the organization’s proxy.” Understandably, the courts do not want to draw a bright line around who may be considered an employer proxy, so that unusual cases can be determined on their peculiar facts without being constrained by particular titles.
All that is required is for the supervisor to occupy a sufficiently high position in the management hierarchy of the company for his actions to be imputed to the company. When the official’s unlawful harassment is thus automatically charged to the employer, it cannot raise the Faragher/Ellerth affirmative defense, even if the harassment did not result in an adverse employment action.
The result is a settling of the law in the Connecticut federal court; the Faragher/Ellerth defense is unavailable when the alleged harasser is the employer’s proxy or alter ego. Both employers and employees now know better where they stand.
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