Court Applies “Faragher-Ellerth” Defense to Dismiss Plaintiff’s Sexual Harassment/Hostile Work Environment Title VII Claim

In Szwalla v. Time Warner Cable, LLC, No. 3:13-CV-713 MAD/DEP, 2015 WL 5708538 (N.D.N.Y. Sept. 29, 2015), the court explained and applied the so-called “Faragher-Ellerth” affirmative defense to a hostile work environment claim.

In this case, plaintiff (an account executive for the Time Warner defendants) alleged that defendants engaged in sexual harassment, subjected her to a hostile work environment, and retaliated against her in violation of Title VII of the Civil Right Act of 1964. The court granted defendants’ motion for summary judgment on plaintiff’s hostile work environment and retaliation claims.

Here I’ll discuss the court’s application of the “Faragher-Ellerth” defense to plaintiff’s hostile work environment claim.

It explained that doctrine as follows:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. However, an affirmative defense is available when the employer does not take any tangible employment action in connection with the harassment. This defense examines the reasonableness of the conduct of both the employer and the victimized employee. Specifically, the Supreme Court held that [t]he defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. (Emphasis added, citations omitted.)

Regarding the first element, the court held that “conclusory assertions … that Defendants’ anti-harassment policies were generally not enforced are insufficient to overcome the undisputed record evidence that Defendants promptly investigated and responded to complaints of sexual harassment.” it noted in particular “the undisputed record evidence that Defendants timely reacted to Plaintiffs’ complaints.”

Regarding the second element, the court noted that defendants “satisfied their initial burden of demonstrating that Plaintiff failed to avail herself of Defendants’ complaint procedures during the eleven-month period of the alleged hostile work environment for which Plaintiff seeks to hold Defendants liable”, which shifted “the burden of production … to Plaintiff to come forward with evidence that her failure to report the harassment was justified.” Plaintiff failed to satisfy her burden in this regard.

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