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The Title VII Affirmative Defense to Sexual Harassment Claims:

  • November 23, 2005

An employer's legal duty to promptly and thoroughly investigate any complaint of perceived discrimination, harassment, or retaliation is well-established.  In fact, under Title VII, an employer may avoid liability for harassment that does not involve an adverse employment action (e.g., termination or demotion) if the employer can demonstrate:  (1) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of the employer's preventive or corrective measures.  This principle often is referred to as the "Faragher/Ellerth affirmative defense," a reference to two 1998 United States Supreme Court decisions in which the Court established the defense.

A recent Ninth Circuit Court of Appeals decision adds an interesting twist to the analysis of what actions an employer must take to utilize the Faragher/Ellerth affirmative defense.  In Hardage v. CBS Broadcasting, Inc., the Court affirmed the dismissal of a male plaintiff's sexual harassment and retaliation claims under Title VII.  The Court ruled the employer could take advantage of the affirmative defense even though, at the plaintiff's request, the employer did not fully investigate his claims or take any corrective action. 

The Facts

Plaintiff Hugh Hardage was a Local Sales Manager for KSTW-TV, a television station owned by Viacom Television Stations, Inc. and managed by CBS Broadcasting, Inc. (collectively, CBS).  Hardage was managed by Patty Dean, who was in turn supervised by defendant Kathy Sparks, the station's General Manager and Hardage's alleged harasser.  Hardage claimed Sparks repeatedly propositioned him and made unwelcome physical contact with him, including multiple instances of groping.

About five months after Sparks's alleged harassment of Hardage stopped, Hardage complained to Dean that Sparks had lost her temper with him and things had gone "way too far."  Dean then suggested to Hardage he "just do it and get it over with.  It may put her in a better mood."  Despite this obviously inappropriate response, Dean promptly contacted an Executive Vice President and a representative from Human Resources called Hardage the same day about Sparks's conduct. 

When the Human Resources representative interviewed Hardage, Hardage insisted on handling the situation himself because he did not think the complaint could be handled "truly anonymously."  When the representative called Hardage to follow-up, Hardage informed him "nothing new had happened" and he still did not want CBS to intervene on his behalf.  CBS complied with Hardage's request and did nothing further with respect to the complaint.

Hardage also contended he was subjected to retaliation by Sparks for not engaging in a sexual relationship with her, and that Sparks made various inappropriate comments, such as, "your number's up" and, "[i]t's not going to be me that loses my job, it's going to be you."  At approximately the same time, Dean sent Hardage and his colleague negative performance memoranda citing problems with their work performance, including an instance of insubordination.  Within the same month, Hardage submitted his letter of resignation because "adverse market conditions had created a 'pretty intense environment' and had 'deflated [him] to the point that  . . . was the end of [his]rope.'"  Based on these facts, Hardage claimed constructive discharge.

The Application of the Faragher/Ellerth Affirmative Defense

In affirming the lower court's dismissal of Hardage's complaint, the Ninth Circuit ruled that even if Hardage was in fact sexually harassed by Sparks, CBS could avoid liability because Hardage failed to establish a material factual dispute regarding the Faragher/Ellerth affirmative defense.

First, in the Court's view, CBS exercised "reasonable care to prevent and correct promptly any sexually harassing behavior" because it adopted and promoted awareness of its anti-harassment policy.  Additionally, CBS took reasonable steps to promptly correct Hardage's particular situation when Dean contacted one of the company's Executive Vice Presidents, who in turn notified Human Resources.  Not only did a Human Resources representative call Hardage on the same day of his complaint, but the Human Resources Representative also met with Hardage and followed-up by telephone approximately two weeks later. 

The Court further reasoned that, although Hardage put CBS on notice of "unwanted sexual advances," he did not tell the company's Human Resources representative about the "gory details" or "specifics about sexual contact" with respect to Sparks's alleged harassment, and specifically requested the company not investigate his complaint.  Therefore, the company was not required to take any further action.

Further, the Court found that Hardage unreasonably failed to take advantage of CBS's preventative or corrective opportunities.  As a Local Sales Manager in charge of supervising ten employees, Hardage was "well aware of CBS's anti-harassment policy and the procedure for initiating a complaint." Hardage's decision to wait until five months after the alleged harassment stopped to make a complaint was not reasonable. 

Finally, Hardage failed to reasonably make use of CBS's anti-harassment policies and procedures by specifically asking the company not to investigate his "admittedly minimal and vague complaint."  Thus, the Court determined, "considering the overall picture," CBS's response was both prompt and reasonable as a matter of law. 

The Impact of The Decision on Employers

As an initial matter, California employers should recognize the limited applicability of the Court's ruling in Hardage.  In a 2004 decision, Department of Health Services v. McGinnis, the California Supreme Court rejected the applicability of the Faragher/Ellerth affirmative defense to claims under the Fair Employment and Housing Act (FEHA). 

Rather, the Court ruled that a well-established mitigation doctrine, "avoidable consequences," may be applied to harassment claims under the FEHA.  Under that doctrine, an employee will be unable to recover any damages that could have been avoided with reasonable effort by utilizing the employer's internal complaint procedures.  However, unlike the Title VII affirmative defense, a case will not be dismissed under the avoidable consequences doctrine. 

In addition, the Ninth Circuit's decision in Hardage was not unanimous.  One of the justices wrote a comprehensive dissent arguing the majority decision was contrary to established case law requiring employers to fully investigate sexual harassment claims and take action to address the any harassing behavior.  Another panel may have issued a different opinion even if the same facts were at issue.

The bottom line remains the same after Hardage:  smart employers must adopt effective anti-harassment policies and make reasonable efforts to disseminate such policies to employees.  They should conduct training for all employees regarding the internal complaint process (of course, such training is now required for supervisors and managers), and be prepared to quickly and thoroughly investigate any complaints.  Even if an employee requests the employer not to intervene, as Hardage did, the employer should recognize the significant legal risks associated with failing to investigate and take appropriate remedial action.

©2005 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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