Alaska Employment Law

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The Faragher/Ellerth affirmative defense is applicable only if the plaintiff seeks to hold the defendant liable for harassment on a vicarious liability theory and the plaintiff did not suffer a tangible employment action. If you have proof that the employer knew or should have known about the harasser’s conduct before this particular plaintiff was harassed, then you can assert liability under a theory of negligence, and avoid this affirmative defense altogether.

If the Faragher/Ellerth defense applies to your case, here is some sample discovery that a plaintiff’s attorney might issue.

Interrogatory:  What, if anything, has [name of defendant] done [over the course of the last five years] to prevent the occurrence of [sexual/racial/age-based, etc.] harassment in the workplace? Please be specific in your response. For example, if your response is that you held (or sent employees to) training classes, state (a) the date(s) of such classes; (b) who attended each such class, by name, work group, or other applicable description; (c) the name of the instructor(s); and (d) whether written materials were used. If your response is that you had a policy regarding this matter, state (a) verbatim the content of the policy; (b) the date the policy was enacted and the dates, if any, of any amendment thereto; (c) how and when the contents of the policy were brought to the attention of [the bad actor], [the bad actor’s supervisors], the plaintiff, and the plaintiff’s co-workers.

RFP:  The documents, if any, that show the measures, if any, that [name of defendant] have taken [over the course of the last five years] to prevent the occurrence of [sexual/racial/age-based, etc.] harassment in the workplace.

RFP:  The complaints of sexual harassment, if any, that you have received in the past five years.

RFP:  The documents, if any, that reveal what steps, if any, the defendant took in response to each complaint of sexual harassment it received over the course of the past five years. If there was an investigation, this document request is intended to cover not only the report, but the notes made by the investigator, the correspondence to or from the investigator, and the documents reviewed by the investigator.

Interrogatory:  What, if anything, did [name of defendant] do to prevent [name of bad actor] from engaging in acts of [sexual/racial/age-based, etc.] harassment in the workplace? Please be specific in your response. For example, if your response is that you held (or sent employees to) training classes, state (a) the date(s) of such classes; (b) who attended each such class, by name, work group, or other applicable description; (c) the name of the instructor(s); and (d) whether written materials were used. If your response is that you had a policy regarding this matter, state (a) verbatim the content of the policy; (b) the date the policy was enacted and the dates, if any, of any amendment thereto; (c) how and when the contents of the policy were brought to the attention of [the bad actor].

RFP:  The documents, if any, that show the measures, if any, that [name of defendant] took to prevent [name of bad actor] from engaging in [sexual/racial/age-based, etc.] harassment in the workplace.

Interrogatory:  If you believe that [name of plaintiff] unreasonably failed to take advantage of any preventive or corrective opportunities that [name of defendant] provided, state exactly what the plaintiff should have done and how it was that she should have known to have engaged in that behavior. Please be specific.

RFP:  The documents, if any, that set forth the preventative or corrective opportunities that [name of defendant] provided to employees who believed themselves to be observers or victims of [sexual/racial/age-based, etc.] harassment in the workplace.

RFP:  The documents, if any, that reveal the effort(s), if any, when other employees have availed themselves of (or attempted to avail themselves of) the preventative or corrective opportunities that [name of defendant] provided to employees who believed themselves to be observers or victims of [sexual/racial/age-based, etc.] harassment in the workplace at any point in time from [five years before the plaintiff’s harassment] through the present.

Interrogatory:  If you believe that, aside from taking advantage of any preventative or corrective opportunities, [name of plaintiff] unreasonably failed to avoid harm otherwise, please state the facts upon which that belief is based. Please be specific.

Comments

See Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 110-11 (3d Cir.1999) (as to the evidence that other female officers had complained about sexual harassment and nothing had been done about it, the court observed, “Indeed, it is hard to imagine evidence more relevant to the issue of whether a sexual harassment policy was generally effective than evidence that male officers did not respect it and that female officers were not protected by it.”).

See also Hatley v. Hilton Hotels Corp., 308 F.3d 473 (5th Cir. 2002), where the plaintiffs had introduced evidence of other victims of sexual harassment at the hands (so to speak) of the same harassers. While the jury verdict was favorable to the plaintiffs, the district court took it away. One of the issues on appeal was the testimony of four other cocktail waitresses who stated they earlier made sexual harassment complaints about the same two alleged harassers to the individual responsible for taking and investigating complaints and that their complaints had fallen through the cracks when reported to management. The Fifth Circuit, in reversing the JMOL, held that this evidence supported the jury’s finding that Bally’s did not take reasonable measures to correct or prevent harassment, which was part of the Faragher/Ellerth defense.

Margie Harris practices employment law in Houston, Texas.  She serves on the Boards of the College of Labor & Employment Lawyers and the Texas Employment Lawyers Association.