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Employer Liability in Single-Severe-Incident Harassment Cases

Courts are torn over how to proceed when the employer has done everything required

Posted by Graig Zappia on September 4th, 2012

Federal judges are increasingly at odds over whether employers’ best efforts to prevent and address sexual harassment should afford them an affirmative defense in cases involving a single isolated incident.

The so-called “Ellerth/Faragher defense” is the central issue of this judicial divide. In his decision in Alalade v. AWS Assistance Corp., 796 F. Supp. 2d 936 (N.D. Indiana 2011), Chief Judge Philip P. Simon detailed the history of what he called the “circuit split.” He examined how federal appellate courts are torn over whether to extend this defense to employers in cases where an employee has been subjected to a “single severe instance of harassment,” such as sexual assault.

Avoiding Vicarious Liability

This split, Chief Judge Simon noted, dates back to the  US Supreme Court’s joint ruling in two cases, Burlington Indus., Inc. v. Ellerth (1998) and Faragher v. City of Boca Raton (1998), which established their namesake defense.

Under this defense, employers can avoid vicarious liability for a supervisor’s sexual harassment as long as two things happen:

  1. The employer takes reasonable steps to prevent and address sexual harassment.
  2. The employee must not unreasonably fail to take advantage the employer’s anti-harassment measures or to avoid the harm otherwise.

Simon explained that the two-prong Ellerth/Faragher defense becomes complicated when the harassment is limited to a single severe incident. This complication arises from the fact sexual harassment can still happen even though an employer “has done everything Title VII requires it to do.” Consequently, an employer would not satisfy both prongs of this test if the employee promptly reports the harassment.

Courts Split

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The  US Circuit Court of Appeals for the Fifth Circuit decided in Indest v. Freeman Decorating, Inc., 164 F. 3d 258 (5th Cir. 1999) that the second prong could be dropped in single-incident cases. The  US Circuit Court of Appeals for the Eighth Circuit reached a similar conclusion in McCurdy v. Ark. State Police, 375 F. 3d 762 (8th Cir. 2004), according to Chief Judge Simon.

The  US Circuit Court of Appeals for the Tenth Circuit, however, refused to drop the second prong in Harrison v. Eddy Potash, Inc., 112 F. 3d 1437(10th Cir. 2001). With the 7th  US Circuit Court of Appeals (the Circuit Court with jurisdiction over Chief Judge Simon Simon’s Indiana court) not yet weighing in on the matter, Chief Judge Simon sided with the 10th Circuit’s decision in Harrison.

Alalade involved an employee whose supervisor nearly raped her. The employee promptly reported the sexual assault. The employer had an anti-harassment policy and promptly responded to the complaint by investigating it and firing the supervisor. In his opinion, Chief Judge Simon acknowledged that “it may seem odd that an employer’s ability to avoid liability under Ellerth/Faragher depends in part on what the plaintiff employee does or doesn’t do.” Chief Judge Simon said, however, that the elimination of the second prong “creates an exception that swallows the Ellerth/Faragher rule.”

The US District Court for the Northern Marina Islands, which is in the 9th US Circuit Court of Appeals’ jurisdiction, later confronted this issue in EEOC v. Asia Pacific Hotels, Inc. (2011). Judge Mark W. Bennett said he “broadly agree[d] with the concerns raised in Alalade,” but “Prong Two just does not seem to make sense in single-severe-incident hostile work environment cases.”

No Blame, No Liability

Judge Bennett stated that “it seems neither fair to that diligent employer nor consistent with the underlying policy of Title VII to have that employer’s Title VII liability turn on the alacrity of the complaining employee.” Although Bennett said he was open to tossing prong two in the “judicial scrap-heap,” he refrained from doing so because the issue was not briefed and the responsibility for trying the case would not fall on him.

Meanwhile, in a recent Federal Court decision, the Federal District Court in the Eastern District of New York expressed no such reservations in tossing Prong Two in Cajamarca v. Regal Entertainment Group (E.D.N.Y., May 31, 2012). Although the sexual harassment in this case was not limited to a single severe incident, the court found the satisfaction of prong two to be unnecessary after concluding that the employer had an “appropriate anti-harassment policy that it reasonably implemented.”

Judge Brian M. Cogan said, “I see no reason why an employer should be held vicariously liable for a hostile work environment solely because the employee reported it, and I do not believe Faragher or Ellerth dictate otherwise.” He added that the purpose of these two decisions was primarily to “determine who is to blame for a continued hostile work environment rather than initial instances of harassment.”


Graig Zappia
Graig Zappia

Partner, Civil Litigation Dept, Tully Rinckey PLLC

Graig Zappia, Esq. is a partner in the civil litigation department of Tully Rinckey PLLC, an employment law firm based in NY, DC, VA. He focuses his practice on labor and employment law, real estate law, and business law.
Graig has secured numerous favorable outcomes for employers and employees, most notably in Fair Labor Standard Act (FLSA) and Family Medical Leave Act (FMLA) cases.
He currently represents large and small businesses, real estate developers, banks and other institutional lenders, as well as private real estate owners.

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