Lexology
Masuda Funai Eifert & Mitchell Ltd
Brian Caster
USA
March 26 2012
Companies should make sure they have in place preventive or corrective policies for handling harassment in the workplace. As the Eighth Circuit recently reaffirmed in Crawford v. BNSF Railway Company, an employer with an effective preventive harassment policy can use this as a shield to vicarious liability for an employee’s harassment.
In Crawford, several employees allegedly suffered sexual and racial harassment at the hands of a supervisor. The employees did not report the supervisor’s behavior to their employer, BNSF, nor did they take advantage of BNSF’s “zero tolerance” harassment policy. Once BNSF found out about the supervisor’s behavior, it took remedial measures, eventually terminating the supervisor.
Full Story: http://www.lexology.com/library/detail.aspx?g=e951b3e9-51c0-470a-8cdf-ae6e40e41e50&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2012-03-29&utm_term=
Showing posts with label affirmative defense. Show all posts
Showing posts with label affirmative defense. Show all posts
Monday, April 2, 2012
Tuesday, February 21, 2012
Your anti-harassment policies and practices are of little utility if you do not follow them
Lexology.com
Fox Rothschild LLP
Richard B. Cohen
USA
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=
Fox Rothschild LLP
Richard B. Cohen
USA
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=
Wednesday, August 4, 2010
NYC employers beware: New York City human rights law bars Faragher-Ellerth affirmative defense to harassment claims
Lexology.com
Lowenstein Sandler PC
William I. Greenbaum and Danielle C. Carmona USA July 22 2010
In a decision that dramatically expands the scope of liability for New York City employers, the New York Court of Appeals held in Zakrzewska v The New School, 2010 NY Slip Op 03796 (NY May 6, 2010) that the Faragher-Ellerth affirmative defense1 — which allows an employer to defeat harassment claims if it demonstrates that (a) there was no adverse employment action, (b) it took reasonable care to prevent or promptly correct harassing conduct, and (c) the employee unreasonably failed to take advantage of the employer’s preventive or corrective procedures — is not available under the New York City Human Rights Law (“NYCHRL”).
Factual and Procedural Background
In Zakrzewska, Plaintiff Dominika Zakrzewska was employed part-time by a print output center within the New School’s Academic Computing Center. Over the course of a year beginning in 2004, Zakrzewska’s “immediate supervisor,” Kwang-Wen Pan, allegedly subjected her to sexually harassing emails and conduct. In alleged retaliation for Zakrzewska’s complaints to School officials in May 2005, Pan covertly monitored Zakrzewska’s Internet usage from August 2005 through 2006.
Zakrzewska later filed suit against the School and Pan in the United States District Court for the Southern District of New York, alleging sexual harassment and retaliation under the NYCHRL. The School moved for summary judgment dismissing Zakrzewska’s complaint on the grounds that it was not vicariously liable for Pan’s alleged conduct under a Faragher-Ellerth defense.
Full Story: http://www.lexology.com/library/detail.aspx?g=cef47d39-ea2c-4fdd-960f-b4782026fbbe&utm_source=Lexology%20Daily%20Newsfeed&utm_medium=Email&utm_campaign=Lexology%20subscriber%20daily%20feed&utm_content=Lexology%20Daily%20Newsfeed%202010-08-04&utm_term=
Lowenstein Sandler PC
William I. Greenbaum and Danielle C. Carmona USA July 22 2010
In a decision that dramatically expands the scope of liability for New York City employers, the New York Court of Appeals held in Zakrzewska v The New School, 2010 NY Slip Op 03796 (NY May 6, 2010) that the Faragher-Ellerth affirmative defense1 — which allows an employer to defeat harassment claims if it demonstrates that (a) there was no adverse employment action, (b) it took reasonable care to prevent or promptly correct harassing conduct, and (c) the employee unreasonably failed to take advantage of the employer’s preventive or corrective procedures — is not available under the New York City Human Rights Law (“NYCHRL”).
Factual and Procedural Background
In Zakrzewska, Plaintiff Dominika Zakrzewska was employed part-time by a print output center within the New School’s Academic Computing Center. Over the course of a year beginning in 2004, Zakrzewska’s “immediate supervisor,” Kwang-Wen Pan, allegedly subjected her to sexually harassing emails and conduct. In alleged retaliation for Zakrzewska’s complaints to School officials in May 2005, Pan covertly monitored Zakrzewska’s Internet usage from August 2005 through 2006.
Zakrzewska later filed suit against the School and Pan in the United States District Court for the Southern District of New York, alleging sexual harassment and retaliation under the NYCHRL. The School moved for summary judgment dismissing Zakrzewska’s complaint on the grounds that it was not vicariously liable for Pan’s alleged conduct under a Faragher-Ellerth defense.
Full Story: http://www.lexology.com/library/detail.aspx?g=cef47d39-ea2c-4fdd-960f-b4782026fbbe&utm_source=Lexology%20Daily%20Newsfeed&utm_medium=Email&utm_campaign=Lexology%20subscriber%20daily%20feed&utm_content=Lexology%20Daily%20Newsfeed%202010-08-04&utm_term=
Wednesday, April 28, 2010
Legal Alert: Court Emphasizes that Evidence of Training Is a Must
Ford & Harrison LLP
4/27/2010
Louis Britt
For over 10 years, employers have been able to avail themselves of an affirmative defense to sexual harassment allegations by an employee against a supervisor/manager in those situations where no tangible adverse employment action has been taken against the employee. This defense is known as the Faragher/Ellerth defense, and can be invoked where the employer can demonstrate that: (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65 (1998). The vast majority of employers have anti-harassment policies including reporting procedures and protocols for employees to follow, have disseminated those policies and procedures to all employees, and have required employees to acknowledge receipt of the policies. However, the adoption, dissemination and acknowledgment of receipt of the policy by the employee may not be sufficient for employer to invoke the affirmative defense.
Recently, in Bishop v. Woodbury Clinical Laboratory, No. 3:08-cv-1032 (M.D. Tenn. 2010), the court rejected the employer's Faragher/Ellerth affirmative defense despite the fact that the employer had an existing anti-harassment policy that was published and provided to all of its employees.
Full Alert: http://www.fordharrison.com/shownews.aspx?Show=6056
4/27/2010
Louis Britt
For over 10 years, employers have been able to avail themselves of an affirmative defense to sexual harassment allegations by an employee against a supervisor/manager in those situations where no tangible adverse employment action has been taken against the employee. This defense is known as the Faragher/Ellerth defense, and can be invoked where the employer can demonstrate that: (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65 (1998). The vast majority of employers have anti-harassment policies including reporting procedures and protocols for employees to follow, have disseminated those policies and procedures to all employees, and have required employees to acknowledge receipt of the policies. However, the adoption, dissemination and acknowledgment of receipt of the policy by the employee may not be sufficient for employer to invoke the affirmative defense.
Recently, in Bishop v. Woodbury Clinical Laboratory, No. 3:08-cv-1032 (M.D. Tenn. 2010), the court rejected the employer's Faragher/Ellerth affirmative defense despite the fact that the employer had an existing anti-harassment policy that was published and provided to all of its employees.
Full Alert: http://www.fordharrison.com/shownews.aspx?Show=6056
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