The defense requires that the employer exercised reasonable care to prevent and correct harassment, and that the employee unreasonably failed to use available preventive or corrective opportunities. It is unavailable where a tangible employment action occurred.
Both elements must be established.
Alternative Names:
Faragher-Ellerth, Affirmative Defense to Harassment
Why it Matters?
An effective complaint procedure that employees actually knew about is what establishes the first element, and a policy that exists on paper without distribution, training, or a functioning reporting channel does not. Prompt and thorough investigation with corrective action is the other half. The defense disappears entirely where the harassment culminated in termination, demotion, or another tangible action, which is why the tangible action question is analyzed first.
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Frequently asked questions
When is the defense unavailable?
What establishes reasonable care?
