The Tenth Circuit Court of Appeals recently rejected an employer’s attempt to assert the Faragher/Ellerth affirmative defense to a former employee’s sexual harassment claim, holding the employer did not establish either of the two parts of the defense. Kramer v. Wasatch County Sherriff’s Office (10th Cir. 2014).
The U.S. Supreme Court established the Faragher/Ellerth affirmative defense to Title VII harassment claims in 1998. An employer can assert the defense in response to a claim where a supervisor is the accused harasser, but no tangible employment action has occurred. The employer must prove two elements to take advantage of the defense: 1) that it exercised reasonable care by having preventive and corrective measures in place, and 2) that the employee unreasonably failed to take advantage of those measures.
The county asserted this defense in response to the claim of former female bailiff, Camille Kramer, who alleged that lead bailiff, Sgt. Rick Benson, raped her. The Tenth Circuit determined that the county fell short on the first part of the defense. “Not just any response to sexual harassment establishes reasonable efforts to comply with Title VII,” the court said. “Employer responses must also meet minimal standards of quality that reflect the preventive purpose of Title VII and the Faragher/Ellerth defense.” Although the court acknowledged that the Sheriff’s Department responded promptly when it first learned of the alleged rape, the county did not show that its response was reasonably calculated to end the harassment, protect Kramer, or deter future harassment. The court took issue with the county’s investigation, which it assigned to a detective with no experience and little guidance who took the investigation in an inappropriate direction and ended up encouraging Kramer to resign. The court said, “[I]nvestigations targeting the victim for unrelated misconduct are especially counterproductive of reasonably calculated efforts to promptly correct sexual harassment.” The court also held that the county did not establish the second part of the defense. Although the county learned about the alleged rape from Kramer’s co-workers and not Kramer, the court said a jury could find Kramer’s failure to complain reasonable in light of the inadequate response to previous complaints she had made and Benson’s threat that her career would be over if she complained about him.
With this decision, the court sets a high bar for employers in the Tenth Circuit asserting the Faragher/Ellerth defense. Employers should not assume that just having policies and preventive measures in place is sufficient. Employers should be prepared to show how their actions were reasonable under the particular circumstances, and that no barriers existed to the employee’s use of the employer’s preventive measures. The Tenth Circuit has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.