Tuesday, February 21, 2012

Your anti-harassment policies and practices are of little utility if you do not follow them

Fox Rothschild LLP
Richard B. Cohen
February 15 2012
A Little Background

In the famous Faragher and Ellerth cases decided in 1998, the US Supreme provided an employer with an affirmative defense to a sexual harassment claim involving a hostile work environment. To take advantage of this defense, the employer must show that:
a. it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (b) “the plaintiff employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise.”

However, it was held that this defense was not available where a supervisor had taken a “tangible employment action” against the complaining employee. The issue left open was whether a “constructive discharge” – i.e., where an employee quits alleging that the harassment she is suffering is so severe that no reasonable employee would have remained -- constitutes a “tangible employment action.”

Full Story: http://www.lexology.com/library/detail.aspx?g=b31a59a1-3a65-4b2c-a762-4fbab3a56b69&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2012-02-20&utm_term=

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