Employers have been ever mindful of their obligation to take complaints of sexual harassment seriously, and to act promptly and effectively to correct those problems in the workplace. The benefits of doing so can often be essential, not to mention substantial. When a supervisor is identified in a lawsuit as the alleged harasser, the employer may still avoid liability, under certain circumstances, as long as the harassment did not result in a “tangible employment action.”

To this end, most, if not all, employers are intimately familiar with the U.S. Supreme Court’s Faragher and Ellerth decisions issued in 1998. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). In those cases, the Court set forth the elements of the employer’s affirmative defense to liability for complaints of sexual harassment. The defense is comprised of two parts. An employer cannot be held liable for sexual harassment by a supervisor (in the absence of tangible employment action) where: 1) the employer exercised reasonable care to prevent and correct any harassing behavior promptly; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher, 524 U.S. at 787; Ellerth, 524 U.S. at 765.

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