The Faragher/Ellerth Affirmative Defense: Pitfalls and Promises

The case of Fay v. City of Newburgh illustrates how the Faragher/Ellerth affirmative defense remains a valuable tool for employers but faces significant limitations, especially in jurisdictions like New York City.

The plaintiff filed a lawsuit alleging sexual harassment, wrongful termination, and retaliation by her supervisor at the City of Newburgh under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. She claimed that her supervisor's inappropriate advances and behavior towards her led to a toxic work environment. The City asserted the Faragher/Ellerth affirmative defense, arguing they had an anti-harassment policy in place, promptly investigated Fay’s complaint, and she failed to reasonably take advantage of the policy.

Generally, an employer can avoid liability for a hostile working environment pursuant to Title VII, and likely the NYSHRL, if they can show two things: (1) they took reasonable care to prevent and correct harassment, and (2) the employee unreasonably failed to use these preventive or corrective measures.

The district court, in Fay, accepted the employer’s anti-harassment policy as satisfying their duty to take reasonable care. The district court explained that this is not about a guarantee of a particular outcome as a result of the application of the policy, but rather a look at whether there are adequate and effective procedures to address harassment. Fay, at *11-12. The district court looked approvingly upon on the fact that, after the plaintiff did file a complaint as directed by the policy, the defendant promptly investigated and allowed her a leave of absence from work. Fay, at *12.

Importantly, the district court noted the lack of evidence “that the City had previously ignored complaints of sexual harassment or failed to take corrective actions in appropriate cases.” Fay, at *12. The plaintiff has to either show that the employer generally ignores complaints or that they complained prior to particular incidents of the harassment. Fay, at *13.

In this particular case, it is unlikely that the plaintiff would have prevailed on the hostile working environment claim even if the Faragher/Ellerth affirmative defense were not asserted.

This case displays some of the limited reach of the defense. Although it provides a complete defense to the Title VII and NYSHRL hostile work environment claims, it did not apply to either the quid pro quo theories or the separate retaliation claims. Whether the affirmative defense even applies to the state law hostile work environment claims is an open question. See eg., Green v. New York City Transit Auth., 2020 U.S. Dist. LEXIS 172519, at *27 (SDNY 2020). The Faragher/Ellerth affirmative defense also does not apply to claims brought under the New York City Human Rights Law.

The pitfall to asserting this defense, for the employer, is that it necessarily puts the employers investigations into, and responses to, other complaints filed at issue in the litigation. It represents one of the many instances of a cost-benefit analysis that needs to be conducted in litigation. That process will be both expensive and insightful.

For both employers and employees, the advice is the same, get a lawyer involved as early as possible. The laws in these instances are varied and complex. Consulting an experienced attorney early can help employers and employees navigate these complex legal standards, ensuring that they are prepared to prosecute or defend their claims effectively.

For employers in particular, this reemphasizes the importance of having a proper policy and of conducting thorough, un-biased investigations. Even without this defense, the fact that you have a competent policy that was followed is helpful to defend against an employee’s claim.

For employees, if your employer has a reporting policy and you do not make a report then you may not be able to bring claims against the employer later. It really reemphasizes how greatly your chances in court can be improved by hiring legal counsel as early in this process as possible.