by Michael Fox
The possibility that an employer could prove unsuccessful in establishing the Faragher affirmative defense, but prevail on the issue of punitive damages under Kolstad is borne out in today's ruling by the Fifth Circuit. In Hatley v. Hilton Hotels [pdf] the Court found that a jury verdict that the company had not established the affirmative defense was supported by evidence that the complainants were not separated from the harassers, that the harassment continued, that a prior complaint of sexual harassment reported to the same person had 'fallen through the cracks' and that others had previously complained about the two harassing supervisors. However, since the company did have an announced policy and did attempt to investigate the claim, it was enough to meet the Kolstad standards and so the court's decision not to instruct the jury on punitive damages was appropriate. Although, there is not a lot of discussion, it is a good recognition of the difference in the two standards.