Faragher/Ellerth Defense Inapplicable to Plaintiff’s Hostile Work Environment Claim Under 42 U.S.C. § 1981

In Lamarr-Arruz & Ansoralli v. CVS Pharmacy, Inc., 15-cv-04261, 2017 WL 4280690 (S.D.N.Y. Sept. 26, 2017), the court rejected the defendant’s reliance on the so-called “Faragher/Ellerth affirmative defense” to plaintiff’s hostile work environment claim under 42 U.S.C. § 1981.[1]I wrote about the court’s evaluation of the first element of plaintiff’s hostile work environment claim under section 1981 here.

Plaintiffs, who worked as “Market Investigators”, alleged that they were instructed to racially profile customers.

The court explained the general rule applicable to the second element of a hostile work environment claim (imputing the harasser’s conduct to the employer):

If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. … A company’s defense to its supervisor’s conduct is known as the Faragher/Ellerth affirmative defense. … The burden in on the employer to establish both elements of the defense

After concluding that enough evidence existed to establish that the alleged harassers were “supervisors”, the court turned to defendant’s argument that it could invoke the Faragher/Ellerth affirmative defense.

The court held that it could not, explaining (inter alia):

Addressing the first element of the Faragher/Ellerth affirmative defense, there are genuine disputes of material fact whether CVS reasonably provided the corrective measures it said it would in its Handbook, which, as written, were reasonable.9 See Ferraro, 440 F.3d at 102 (“[T]he existence of an antiharassment policy … is not always dispositive.”). The testimony by Lamarr–Arruz that his complaints to the ethics hotline were ignored raises questions regarding whether the hotline was a viable means of reporting racial discrimination. Similarly, the evidence raises genuine disputes of material facts about whether complaining to a supervisor was a reasonable avenue to report discrimination or a false promise. While the CVS Handbook states that “All complaints of inappropriate conduct will be promptly and thoroughly investigated by the Human Resources Manager and/or the respective department manager,” Salavatore Decl. Ex. 1 at CVS 00003060, there is sufficient evidence to conclude that that protocol was not followed by supervisors and that the written policy was thus window dressing.

This decision teaches, among other things, that merely having a complaint procedure may not be enough to escape liability for a hostile work environment – particularly where there is evidence that that procedure is not followed.

1 I wrote about the court’s evaluation of the first element of plaintiff’s hostile work environment claim under section 1981 here.
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