In 1998, when the U.S. Supreme Court decided Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, it set forth an affirmative defense that may be used by an employer to avoid liability for sexual harassment predicated upon a hostile work environment when no adverse employment action has been suffered by the employee. According to a recent Fifth Circuit decision, Williams v. Administrative Board of Review, the test set forth for avoiding vicarious liability in Ellerth/Faragher is "(1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) the harassed employee unreasonably failed to take advantage of any preventive opportunities provided by the employer."
The Tenth Circuit Court of Appeals, which interprets federal law in Colorado, has determined that the Ellerth/Faragher affirmative defense applies to claims based upon race discrimination. This past summer, the court in Williams was faced with the issue of whether the Ellerth/Faragher affirmative defense should apply to claims based upon retaliation for whistle-blowing activities, under the Energy Reorganization Act of 1974 (ERA), where no adverse employment action occurred. The court answered the question in the affirmative, signaling the continuation of a trend.
In Williams, the plaintiff was part of a group responsible for developing and applying detailed procedures for the disassembly of certain outdated nuclear weapons. Williams's group joined a group of incumbent employees to work on this task. The group felt that the incumbent employees had failed to comply with certain safety guidelines and so advised management. Williams later complained that he suffered retaliation for his whistle-blowing activities.
Before friction arose between Williams's group and the incumbents, the company had established a formal system through which employees could report safety-related concerns. The employees were aware of the program for reporting such concerns, and the program was independent of the usual chain of command.
Once management became aware of the conflicts between Williams's group and the incumbents, management acted swiftly to address the situation, assembling an investigative team to look into the hostilities and offer recommendations. The company shut down the disassembly program for a period of time and ordered the entire staff to complete 40 hours of training on "human interaction and teamwork." The company also conducted a line-by-line review of the safety procedures in the program in order to address concerns raised by Williams's group. After the foregoing actions were complete, the company conducted a "root cause" analysis and published written guidelines for supervisors that were designed to assist in eliminating future hostilities.
The administrative review board of the Department of Labor denied plaintiff's request for relief, finding that he had not been subjected to a hostile work environment in retaliation for his whistle-blowing activities. The board, however, refused to apply the Ellerth/Faragher affirmative defense. The Fifth Circuit Court of Appeals affirmed the denial of relief to Williams, but concluded, as a matter of law, that the Ellerth/Faragher affirmative defense is available to employers in connection with claims based upon an alleged hostile work environment in retaliation for whistle-blowing activities under the ERA. The Fifth Circuit found that the employer exercised reasonable care to correct and prevent the harassing behavior and that Williams had unreasonably delayed in taking advantage of the opportunities provided by the employer. Accordingly, Williams's claim was rejected based upon the Ellerth/Faragher affirmative defense.
Practical Application for Employers
Complaint procedures set forth in employee handbooks or other company documents should be sufficiently broad to include all types of harassing behavior that may be unlawful. Complaint procedures that are too narrowly focused, i.e., those that focus simply on sex- or race-based harassment, may preclude an employer from taking advantage of the Ellerth/Faragher affirmative defense for claims that go beyond hostile environment based on sex or race. Accordingly, employers should review the complaint procedures they have available in order to ensure that such procedures have applicability to all types of unlawful harassment and conduct.
Kris J. Kostolansky is a partner at RJ&L's Denver office, where he specializes in the representation of businesses in employment and commercial disputes. He has extensive experience in the areas of employment law, commercial contracts, and business torts. Mr. Kostolansky has litigated numerous cases involving wrongful discharge, discrimination, trade secrets, and noncompete agreements. He has also counseled public and private entities on accessibility issues under the Americans with Disabilities Act.
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