In this remarkable, well-reasoned case (IMHO), the Eighth Circuit rejects a literal reading of the Faragher/Ellerth affirmative defense that would require that in all circumstances in order to avoid liability the employer must prove that the plaintiff failed to report harassment.
The scenario in McCurdy v. AR State Police, No. 03-3058 (8th Cir. 07/23/04) is one I have puzzled over since the Supreme Court decided Faragher and Ellerth in 1998 — what if both employer and employee fulfil their obligations to act reasonably — if the employer has a wonderful policy in place and acts promptly to respond to complaints, and the employee uses the policy to promptly complain?
Is the employer still liable if before complaining the employee had suffered a single incident severe enough to be otherwise actionable? This would appear to follow from Faragher and Ellerth, because the employer cannot establish the second prong of the affirmative defense: that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise (she complained immediately after it occurred).
Here’s what the Eighth Circuit says in concluding the employer is not liable, despite the literal language of Faragher and Ellerth requiring that both prongs of the defense be established to avoid liability:
Strict adherence to the Supreme Court’s two-prong affirmative defense in this case is like trying to fit a square peg into a round hole. We will not tire ourselves with such an exercise. Instead, we critically ask whether Title VII envisions strict employer liability for a supervisor’s single incident of sexual harassment when the employer takes swift and effective action to insulate the complaining employee from further harassment the moment the employer learns about the harassing conduct. . . .
[W]e begin with the obvious understanding that the Supreme Court, when it used the Ellerth and Faragher facts to craft the two-prong affirmative defense to strict liability, was not addressing an employer who takes swift and effective action the minute it learns of a single incident of supervisor sexual harassment. Judicially adopted defenses should not be viewed in a vacuum and blindly applied to all future cases. Instead, we should analyze these defenses based on the unique facts involved in the cases in which courts adopt the defenses. In Ellerth and Faragher, the Supreme Court confronted cases involving repeated incidents of supervisor sexual harassment. . .
It is a fair question to ask who should bear the responsibility for a single incident of supervisor sexual harassment, an innocent employee like McCurdy or an employer like the ASP who effectively stops the harassment after it learns about it. One could argue the ASP should bear the risk of supervisor sexual harassment, as opposed to the innocent McCurdy. However, the Court has rejected this theory of vicarious liability. . .
The underlying theme under Title VII is employers should nip harassment in the bud. That is exactly what happened here. Read more
Interesting side point: what is in common between this case and the recent Supreme Court constructive discharge case? Answer: the women were employees of state police departments. And I will say I’ve run across a number of other harassment cases involving state police. Coincidence? Perhaps. But if I were running HR for a state police department, I’d be spending a lot of time brushing up on the harassment policy and preventive and corrective measures, including training.
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