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Faragher v. City of Boca Raton: A Seven-year Retrospective

January, 2006 Labor And Employment Law

T he most heralded legacy of the 1998 U.S. Supreme Court decision in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) — a plaintiff’s victory allowing vicarious liability for hostile-environment discrimination — is, ironically, the “ Faragher defense.” While an employer is liable for discriminatory behavior by supervisory personnel, it can — so long as no “tangible employment action” such as termination, demotion, or transfer occurs — plead and prove a two-prong affirmative defense: One, that it had an effective mechanism to prevent discrimination and, two, that the employee unreasonably ignored it.1 T his has evolved over seven years into a fact-intensive matrix for fairly imposing liability on employers.

Despite apprehension from commentators that the affirmative-defense exception would swallow the rule of vicarious liability,2 a ppeals courts have marched beyond buzz words. While recognizing that the Supreme Court’s goal was to polish the preventative facet of Title VII, and not to provide a pot-of-gold “temptation to litigate,”3 c ircuit courts uniformly have signaled that the “ Faragher defense” inquiry is rigorous.

Plaintiffs’ unsubstantiated “bad faith” claims fail,4 b ut neither “[g]eneralized references” to an anti-harassment policy”5 n or “the meager action of adopting, but not promulgating, a sexual harassment policy”6 w ill suffice. What else does not work? “[I]ssuing written policies but not enforcing them, painting over offensive graffiti every few months only to see it go up again in minutes, [and] failing to investigate sexual harassment as it investigated and punished other forms of misconduct” fall short.7 E vidence that an employer “did not handle the internal investigation properly or timely” can defeat the defense.8 L ikewise, responding to two women who “complained at virtually every available opportunity” by telling one that she was “overreacting” punctured the Faragher defense.9 S o did having an anti-harassment policy, but telling a victim that his racist tormentor “did not mean anything by his language.”10 T elling an employee to report future incidents of harassment, without actually investigating current allegations, “did not remedy the harassment that had already occurred, and was not adequate to deter future harassment.”11 S arcastically inquiring whether a black employee wanted the company to tear down a wall on which a racist death threat had been painted twice was “worse than no response at all.”12 W ho can be the plaintiff’s strongest witness? In Cadena v. Pacesetter Corp. , 224 F.3d 1203,1209 (10th Cir. 2000),13 i t may have been the human resources vice president who never spoke to the complainant during her “investigation” and was unsure if she ever had learned the specifics of the complaint.

Conflicting testimony concerning the dissemination of an anti-harassment policy,14 o r its contents, as in the 11th Circuit case of Frederick v. Sprint/United Mgmt. Co. , 246 F.3d 1305, 1314-13115 (11th Cir. 2001), creates a jury question. One cannot outlaw “sexual” harassment, but keep silent about other gender-based behavior.15 E ven a rigorously enforced policy does not necessarily shield an employer if severe and pervasive harm, e.g. , a rape, occurs prior to the employee’s having had a chance to complain.16

While employers may designate to whom to complain, as in the 11th Circuit case of Madray v. Publix Supermarkets, Inc. , 208 F.3d 1290, 1300 (11th Cir. 2000),17 t hey may not stand on formalism when harassment comes to their attention through another channel . Thus, employers have been held to have adequate notice when supervisors with a duty to report witnessed harassment18 ; a supervisor to whom a victim was supposed to complain had laughed at offending behavior19 ; complaints were made by a co-worker20 ; or were raised in a union grievance.21 A s the Seventh Circuit has held, “[a]t bottom, the employer’s knowledge of the misconduct is what is critical, not how the employer came to have that knowledge.”22

What constitutes an adequate response? Prompt suspension and termination works every time.23 T ypical is the 11th Circuit decision in Walton v. Johnson & Johnson Servs., 347 F. 3d 1272, 1288 (11th Cir. 2003) , where the supervisor was suspended three days after a sales representative complained about a “consensual affair,” and was subsequently fired.

A plaintiff’s biggest mistake is to suffer in silence. In Casiano v. AT&T Corp., 213 F. 3d 278, 287 (5th Cir. 2000), the court found dispositive plaintiff’s own testimony that he “suffered at least fifteen propositions yet never reported any of the incidents until months after the last of them.” The 11th Circuit held in Walton24 t hat “absent a credible threat of retaliation, [a plaintiff’s] subjective fears of reprisal do not excuse her failure to report.” When higher-ups clearly are accessible, a supervisor’s threats do not excuse nonreporting.25 I t was for a jury to decide, however, whether a 17-year-old was objectively reasonable in taking to heart her 34-year-old supervisor’s threat that if she complained about his assaulting her they would both be fired — even though “[t]o an outsider, especially one of maturity and established position, this threat might seem hogwash…. ”26 A jury could also consider an employee’s failing to complain about a perpetrator who carried a gun.27 J uries should weigh employers’ criticisms about the promptness of an employee’s complaint and the reasonableness of the employee’s cooperation.28

A defendant relying on an employee’s failure to complain, however, needs “to identify all of the Affirmative Action Officers and Personnel Directors to whom [the employee] might have complained, and show conclusively that she did not.”29 T estimony that a plaintiff complained to her boss’ boss creates a question of fact.30

Any Faragher defense, of course, dissolves when a tangible job detriment occurs. Termination obviously is the ultimate such action, as in Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1248-1249 (11th Cir. 2004), where a manager fired a fast food worker who rejected advances. Less drastic actions also qualify, such as a supervisor who required plaintiff to submit to weekly sexual activity to keep her job and withheld paychecks,31 o r a bank vice president who withheld loan approvals that impacted loan officers’ commissions and bonuses.32

Significantly, in Pa. State Police v. Suders, 542 U.S. 129 (2004), the Supreme Court held that “[t]his affirmative defense will not be available to the employer. . . if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions.”

Thus, seven years after the Court decided Faragher, the “ Faragher defense” continues to evolve. While district courts appeared initially to fall prey to a form-over-substance approach, courts of appeals have rejected lip service and legerdemain. Suders is but a logical extension of the continuum.

1 524 U.S. at 807-808.
2 See, e.g., Anne Lawton, Operating in an Empirical Vacuum: The Ellerth and Faragher Affirmative Defense, 13 Colum. J. Gender & L. 197, 212 (2004) (“lower federal courts have interpreted the employer’s obligations and burden of proof so that employers have little incentive to do anything besides promulgate policies and procedures that look good on paper”).
3 524 U.S. at 805.
4 Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 266 (4th Cir. 2001).
5 Cerros v. Steel Techs., Inc., 398 F.3d 944, 952-955 (7th Cir. 2005).
6 Robinson v. Sappington, 351 F.3d 317, 337 (7th Cir. 2003).
7 Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 118 (3d Cir. 1999).
8 White v. New Hampshire Dep’t of Corrections, 221 F.3d 254, 261-262 (1st Cir. 2000).
9 EEOC v. R&R Ventures, 244 F.3d 334, 341 (4th Cir. 2001).
10 Spriggs v. Diamond Auto Glass, 242 F.3d 179, 187-188 (4th Cir. 2001).
11 Nichols v. Azteca Rest. Enters., 256 F.3d 864, 876 (9th Cir. 2001).
12 Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909-910 (8th Cir. 2003).
13 224 F.3d 1203, 1209 (10th Cir. 2000) (affirming $300,000 judgment, reduced from $750,000).
14 Marrero v. Goya of P.R., Inc., 304 F.3d 7, 22 (1st Cir. 2002).
15 Smith v. First Union Nat’l Bank, 202 F.3d 234, 245 (4th Cir. 2000).
16 Greene v. Dalton, 334 U.S. App. D.C. 92 (D.C. Cir. 1999).
17 208 F.3d 1290, 1300 (11th Cir. 2000) (“Publix required that its employees report harassing behavior to either the store manager, district manager, or divisional manager and went so far as to list the names and phone numbers…”)
18 See, e.g. Clark v. UPS, 400 F.3d 341, 350-351 (6th Cir. 2005).
19 Swinton v. Potomac Corp., 270 F.3d 794, 801 (9th Cir. 2001).
20 Sims v. Health Midwest Physician Servs. Corp., 196 F.3d 915, 920 (8th Cir. 1999).
21 Watts v. Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999).
22 Cerros, 398 F.3d at 952.
23 See, e.g., McCurdy v. Ark. State Police, 375 F.3d 762, 772 (8th Cir. 2004) (offending sergeant promptly separated, fired); Wyatt v. Hunt Plywood Co., 297 F.3d 405, 413 (5th Cir. 2002) (“When Hunt’s higher management personnel became aware of Thompson’s sexually harassing conduct and Gorum’s misrepresentation of it, Thompson and Gorum were suspended, investigated, and fired promptly”); and Matvia v. Bald Head Island Mgmt., 259 F.3d 261, 268 (4th Cir., 2001) (supervisor suspended four days after attempting to kiss plaintiff, fired 12 days later).
24 347 F.3d at 1290-1291.
25 Wyatt, 297 F.3d at 413.
26 Reed v. MBNA Mktg. Sys., 333 F.3d 27, 37 (1st Cir. 2003).
27 Swinton, 270 F.3d at 801.
28 Hardy v. Univ. of Ill. at Chicago, 328 F.3d 361, 365-366 (7th Cir. 2003).
29 Fairbrother v. Morrison, Case No. 03-9242-cv, Slip Op., 2005 U.S. App. LEXIS 11148, *36 (2d Cir. June 14, 2005).
30 Mack v. Otis Elevator Co., 326 F.3d 116, 128 (2d Cir. 2003).
31 Min Jin v. Metro. Life Ins. Co., 310 F.3d 84, 93 (2d Cir. 2002).
32 Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1230 (10th Cir. 2000).

William R. Amlong practices in Ft. Lauderdale with the five-lawyer firm of Amlong & Amlong, P.A. Mr. Amlong represented Beth Ann Faragher through trial, appeal, and before the U.S. Supreme Court.
This column is submitted on behalf of the Labor and Employment Law Section, Frank D. Kitchen, chair, and Frank E. Brown, editor.
Mr. Amlong’s article, “Faragher v. City of Boca Raton: A Seven-year Retrospective,” was previously published in the ABA 2005 – 2006 Tips Employer-Employee Relations Committee Newsletter, Fall 2005 and is reprinted by permission of the American Bar Association.