Jottings By An Employer's Lawyer

Tuesday, October 21, 2003

11th Cir. Upholds Summary Judgment Based on Faragher/Ellerth Defense - Dodges 2 Unanswered Questions

The 11th Circuit was the birthplace of one-half of the Faragher/Ellerth defense, actually to be precise, one half of the cases that were wrongly decided from which the Supreme Court fashioned the defense. So perhaps it is only fitting that it spend a lot of time (46) pages applying that decision, only to avoid two of the key questions that remain unanswered 5 years later. No sense in getting them wrong. Walton v. Johnson & Johnson (11th Cir. 10/20/03) [pdf]. It is another case where, first an employer and then a court, are faced with deciding whether it was a case of sexual harassment or a consensual affair. The male supervisor claimed the latter, his female employee the former, including allegations of rape. Reading between the lines, all involved seemed to believe that it was at least consensual in nature to start with. The upshot was the supervisor lost his job for poor management decisions and the employee sued for sexual harassment. She lost in the trial court when the employer established the affirmative defense that it had in place a policy to prevent sexual harassment and the employee did not take advantage of it. The appellate court upheld the decision and along the way rejected her argument that the company could not take advantage of the defense because it did not have an effective policy in place. Her three reasons, the company did not provide offices for the employees but allowed to work out of their homes which contributed to the situation, the employer had failed to name a specific individual that employees should address harassment complaint to, and the company did not check with the alleged harasser's then current employer before hiring him, were all insufficient to defeat the first element.

What it did not answer are two of the questions that remain without a definitive answer after 5 years of Faragher/Ellerth. What happens when the employee timely complains and the company promptly acts in response to that claim, a situation it dubs "sudden sexual harassment"? In other words, if the employee promptly complains, is it impossible for the company to win? The second question is whether or not constructive discharge is sufficient for a tangible employment action? Actually there was a third question, although the 11th Circuit found it related to the issue of constructive discharge, whether forcing an employee to engage in sex (a premise accepted for purpose of summary judgment) is a tangible job action that precludes the employer from utilizing the defense. Although any of these could have derailed the summary judgment, since they were not raised before the trial court the appellate court was able to duck them.

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