Friday, August 22, 2008

8th Circuit Reaffirms Sex Harassment Defense

In Adams v. O'Reilly Automotive, Inc.—a case decided last week by a panel of 8th Circuit judges—the Court reaffirmed the strength of the Ellerth/Faragher defense for employers in sexual harassment cases.  In this case, the plaintiff argued of a multiple year history of harassment on the part of one of defendant’s supervisors.

The Ellerth-Faragher defense requires an employer to demonstrate that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.”  Faragher, 524 U.S. at 807.  Proof that an employer had promulgated an anti-harassment policy “is not necessary in every instance,” id., but “distribution of a valid anti-harassment policy provides compelling proof” that an employer exercised reasonable care in preventing and promptly correcting sexual harassment.  Weger v. City of Ladue, 500 F.3d 710, 719 (8th Cir. 2007).

In this case, there was no dispute that O'Reilly had promulgated and disseminated an anti-harassment policy; rather, the parties disputed whether the policy was reasonable and properly enforced. One of Adams arguments was that the policy required a witness to corroborate the harassment.  The 8th Circuit found nothing objectionable in O'Reilly requiring “some kind of confirmation of sexual harassment” before taking action against alleged harassers.  Indeed, the Court found that a corroborating witness “rightly honors the vaunted principle that the burden of proof is on the accuser, and it prevents discrimination against those accused of sexual harassment.”

After establishing that the O’Rielly policy was reasonable, the Court then found that Adams’ delay in reporting the harassment was unreasonable and that O’Reilly’s immediate response after she reported the harassment was sufficient.  Adams argued that her delay in reporting was reasonable in light of her fear of retaliation; however, the 8th Circuit stated that “fear of retaliation” is not generally an excuse for failing to report sexual harassment.

The Panel concluded that, where an effective policy against sexual harassment is in place, the employer “as a matter of law” has satisfied its duty to inform itself about its employees’ behavior.  This case again shows that the strongest defense an employer (public or private) has to sexual harassment claims is to implement an anti-harassment policy and swiftly respond to harassment claims. 

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