The legacy of the Faragher/Ellerth sexual harassment cases continues to play out in federal courts. One of the more draconian aspects of those decisions is that an employer cannot raise an affirmative defense to a charge of harassment in a situation where a supervisor is accused of harassing the plaintiff and there is a tangible adverse employment action linked to the harassment. In Ferraro v. Kellwood County, the 2nd Circuit recently clarified the circumstances that must link the tangible employment action and the harassment so as to defeat the employer's ability to defend itself . The employee in this case sued Kellwood under the New York City State and New York City human rights statutes, which are interpreted in a like manner with Title VII.
Although the district court precluded Kellwood's ability to raise the Faragher defenses, the 2nd Circuit disagreed. Specifically, the Court noted that the claimed adverse tangible employment action must be linked to the claimed harassment by the same supervisor. In Kellwood, the plaintiff was terminated from disability leave brought on by stress at work. The court found that plaintiff's supervisor, who was accused of berating and victimizing her by merging her division into another, was not alleged to have taken tangible employment action against her. The court noted that in situations where a supervisor takes no tangible employment action (an official company act) or the tangible action alleged was not part of the supervisor's discriminatory harassment, there is no bar to raising the affirmative Faragher defenses.
This is a common-sense reading of Faragher that is also followed in five other circuits. From a practical standpoint, it provides a way for employers to manage employees who are alleging sexual harassment and against whom some tangible employment action is being considered. Employers under these circumstances should think about moving the employee out from under the problem supervisor so that any tangible employment action that results cannot be linked to the harassment or the supervisor, thus preserving the affirmative defense.