Dec 31, 1999 Year In Review

Application of the Ellerth/Faragher Affirmative Defense in Harassment Cases in the Second and Ninth Circuits


Many employers are already familiar with the pair of sexual harassment decisions announced by the U.S. Supreme Court in June 1998, entitled Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).These decisions clarified the standard for employer liability in hostile work environment sexual harassment cases. In Ellerth and Faragher, the Supreme Court ruled that when a supervisor has, in addition to creating a hostile work environment, taken some tangible employment action against the victim (e.g., demotion, undesirable work assignment, or denial of a raise), the employer is automatically liable for the supervisor’s conduct. In other hostile environment cases, however, the employer may avoid liability by establishing both prongs of the following affirmative defense: (i) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

A more extensive discussion of Ellerth and Faragher is available on our website,, in an article entitled “Supreme Court Clarifies Standards for Employer Liability for Sexual Harassment by Supervisors.”

Application of the affirmative defense in the Second and Ninth Circuits

Because Ellerth and Faragher were decided by the Supreme Court relatively recently, the federal appellate courts in New York and California (the Second and Ninth Circuits) have had little opportunity thus far to review cases in which employers have invoked the affirmative defense described above. In fact, at press time, the Second Circuit had considered the issue only once, and the Ninth Circuit only twice. These decisions are summarized below.

Caridad v. Metro-North Commuter Railroad: Second Circuit

In Caridad v. Metro-North Commuter Railroad, No. 98-7825, 1999 WL 626963 (2nd Cir. July 30, 1999), the Second Circuit affirmed the dismissal on summary judgment of plaintiff’s sexual harassment claims. Plaintiff had alleged “several episodes, which included unwanted sexual touchings.” Id. at *5. Plaintiff failed to report the alleged harassment until she was disciplined by Metro-North for absenteeism, at which point she complained to a Company EEO Director — without providing any details — of being sexually harassed. Plaintiff requested that the EEO Director take no action with respect to her complaint. The EEO Director complied with her wishes, but offered to transfer her to another shift or to another position; she declined both offers. Several months later, she resigned her employment.

Plaintiff later explained that she did not ask the employer to investigate her complaints because she did not think an investigation would improve matters, and because she did not trust Metro-North or its equal employment office. Id. at *6. The district court found that Plaintiff’s refusal to cooperate in Metro-North’s efforts to investigate her complaint was fatal to her sexual harassment claim.

On appeal, Plaintiff argued that she was constructively discharged, and that this discharge constituted a “tangible employment action” rendering inapplicable the affirmative defense described in Ellerth and Faragher. The Second Circuit disagreed, concluding that “constructive discharge is not a tangible employment action warranting the imposition of strict liability under the Ellerth/Faragher standard.” Id. at *11.

The Second Circuit was likewise unpersuaded by Plaintiff’s contention that Metro-North had not exercised reasonable care in preventing and remedying sexual harassment. In concluding that Metro-North had exercised reasonable care, the Court pointed to Metro-North’s anti-harassment policy, which included a procedure for filing complaints, and to Metro-North’s apparent efforts to investigate and remedy problems reported by its employees.

Finally, in disposing of Plaintiff’s argument on appeal that her failure to utilize Metro-North’s internal complaint and investigation procedure was not unreasonable, the court explained:

We do not doubt that there are many reasons why a victimized employee may be reluctant to report acts of workplace harassment, but for that reluctance to preclude the employer’s affirmative defense, it must be based on apprehension of what the employer might do, not merely on concern about the reaction of co-workers. Caridad’s reasons are not based on a credible fear that her complaint would not be taken seriously or that she would suffer some adverse employment action as a result of filing a complaint. Her reasons for not complaining to her employer are insufficient to preclude summary judgment in favor of Metro-North.

Id. at *12.

Burrell v. Star Nursery, Inc.: Ninth Circuit

The Ninth Circuit’s first substantive discussion of the Ellerth/Faragher affirmative defense is found in Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999). Plaintiff alleged she had been sexually harassed both by her supervisor and by certain coworkers; the district court dismissed her complaint on summary judgment. The Ninth Circuit affirmed the dismissal with respect to allegations of sexual harassment by coworkers, on the theory that Plaintiff could not establish that management-level employees “knew or should have known” about the alleged misconduct, since no one witnessed it, nor did Plaintiff ever report it. Id. at 955.

With regard to Plaintiff’s allegation that her supervisor sexually harassed her, the Ninth Circuit remanded to the district court for a determination as to whether, under Ellerth and Faragher, Plaintiff had suffered a “tangible employment action,” and if not, whether the employer could establish the Ellerth/Faragher affirmative defense. In directing the district court to consider these issues, the Ninth Circuit stated: “we encourage the district court to allow the parties to amend their pleadings and supplement their discovery to address the elements of the new standard.” Id. at 956.

Montero v. AGCO Corp.: Ninth Circuit

In Montero v. AGCO Corp., No. 98-16806, 1999 WL 759966 (9th Cir. Sept. 28, 1999), the only case to date in which the Ninth Circuit has actually had occasion to apply the Ellerth/Faragher affirmative defense, the court affirmed dismissal of Plaintiff’s sexual harassment complaint on summary judgment. Plaintiff alleged that her supervisor and other male coworkers had engaged in a panoply of offensive conduct directed toward her, including using foul language, threatening to spank her, making sexually suggestive remarks and gestures, and writing sexually suggestive notes to her. Plaintiff first reported this conduct to her employer two years after it began, and her report came four months after the offensive conduct had ceased. The company promptly investigated her complaint, and, at Plaintiff’s request, placed her on paid administrative leave in the interim. At the conclusion of its investigation, the company terminated Plaintiff’s supervisor and disciplined the other harassers. Plaintiff did not return to work, first because her psychologist designated her unable to work, and then because her attorney wrote to the company to advise that she had resigned. The company asked Plaintiff to reconsider this decision, and it advised her that a new manager had been hired to run her facility who was committed to ensuring that all employees were treated fairly and appropriately. Plaintiff responded by filing a sexual harassment lawsuit.

Like the plaintiff in Caridad, Plaintiff claimed that she had been constructively discharged, and that this constructive discharge constituted a “tangible employment action” precluding application of the Ellerth/Faragher affirmative defense. Unlike the Second Circuit in Caridad, however, the Ninth Circuit did not decide the issue of whether constructive discharge is a tangible employment action; rather, the court ruled that Plaintiff had not been constructively discharged, because no reasonable person in her position would have felt forced to quit under the factual circumstances described above.

Moving to the issue of whether the employer satisfied both prongs of the Ellerth/Faragher affirmative defense, the court found that the company had exercised reasonable care to prevent and correct promptly any sexually harassing behavior, pointing to the company’s sexual harassment policy, and to the employer’s prompt investigation of Plaintiff’s complaint. The court noted specifically that the company’s Human Resources Manager flew from Illinois to California on a Sunday to investigate the allegations Plaintiff had made the three days earlier, and that prompt remedial action was taken thereafter: “[f]rom the time Plaintiff complained, it took AGCO only 11 days to complete its investigation and take action to address Plaintiff’s complaint in a decisive and meaningful fashion.” Id. at *5.

The court also found that the second prong of the affirmative defense had been established, finding unreasonable Plaintiff’s delay of two years in reporting the harassment, given Plaintiff’s awareness of the company’s sexual harassment policy and the complaint mechanism described in that policy. Having fulfilled both requirements of the affirmative defense, the employer was held not liable for sexual harassment.

Kauff, McClain & McGuire’s recent success establishing the affirmative defense

We cannot leave this topic without mentioning that Kauff, McClain & McGuire recently succeeded in establishing the Ellerth/Faragher affirmative defense, resulting in the dismissal on summary judgment of a sexual harassment case filed in district court in the Second Circuit. (The plaintiff in this case did not appeal.) Plaintiff claimed that her supervisor engaged in a variety of offensive conduct, including placing his hands on her buttocks, pressing her hand against his crotch, rubbing his crotch in her presence, showing her pornographic pictures, and asking her questions regarding her sexual activities. Based on the following, the court concluded that the employer had established both elements of the affirmative defense: the employer had a comprehensive sexual harassment policy that provided various means through which an employee could pursue complaints; Plaintiff knew at least one company employee who had been terminated for sexual harassment; Plaintiff had previously lodged a harassment complaint about harassing conduct by a co-worker (not of a sexual nature) as a result of which the harasser was disciplined; and Plaintiff failed to alert anyone at the company regarding the supervisor’s offensive conduct. The court did not accept Plaintiff’s argument that her failure to report the conduct was reasonable in light of her reluctance to discuss sexual matters with anyone and her fear of losing her job if she complained. Instead, the court found that generalized fears of retaliation can never constitute reasonable grounds for failing to complain to one’s employer.


We have seen from our own recent experience, as well as from Caridad and Montero, that employers who successfully establish the Ellerth/Faragher affirmative defense can win harassment cases before trial. To establish the affirmative defense and avoid liability, it is essential that employers have a well-publicized and unequivocal policy against harassment, complete with numerous avenues for lodging complaints, and a practice of promptly and thoroughly investigating harassment complaints and taking appropriate disciplinary action against harassers.