Employers generally are liable for a supervisor’s sexual harassment if it is severe and pervasive enough to result in a hostile work environment. But an affirmative defense is available to employers. In Baldwin v. Blue Cross/Blue Shield of Alabama, the Eleventh Circuit had to decide whether an employer’s affirmative defense could prevail.
UNSUBSTANTIATED COMPLAINT
After several months of allegedly being subjected to sexually harassing incidents by her supervisor, an employee finally informed human resources. It investigated but could find no one to substantiate her complaints.
The company offered on four separate occasions to transfer the employee to another office or to have a counselor oversee her interactions with her supervisor. When she refused to accept either solution, the company fired her. She sued for sex discrimination, alleging that her boss’s harassing behavior created a hostile work environment amounting to discrimination barred by Title VII of the 1964 Civil Rights Act.
UNDISPUTED FACTS
The trial court ruled for the company without a trial because the facts were undisputed and the company was entitled to judgment as a matter of law.
The Eleventh Circuit affirmed. It found that no one disputed that she was fired because she refused to work with her boss, accept a transfer or resolve the problem through counseling. Firing an employee because she won’t cooperate with her employer’s reasonable efforts to resolve her complaints doesn’t constitute discrimination based on sex — even if the complaints are about sex discrimination.
The Eleventh Circuit found that, because the employee hadn’t suffered any tangible employment action as a result of the claimed sexual discrimination, her only basis for recovery was hostile-environment discrimination. To recover on this claim, she had to show that she was harassed because of her sex, that the harassment was “sufficiently severe or pervasive to alter the terms” of employment, and that some basis existed for holding the employer liable.
THE FARAGHER-ELLERTH DEFENSE
An employer can avoid liability for hostile-environment discrimination under the Faragher-Ellerth defense if:
- It “exercised reasonable care to prevent and correct promptly” any sexually harassing behavior, and
- The employee “unreasonably failed to take advantage of any preventive or corrective opportunities” provided.
Here, the employee didn’t dispute that the company had a valid antidiscrimination policy barring harassment that was effectively communicated to all employees. Nor did she dispute that she was fully aware of its reasonable reporting requirements and procedures. The question was whether the company — after she complained — exercised reasonable care to promptly correct any sexually harassing behavior.
The court explained that requiring a reasonable investigation doesn’t require an employer to credit uncorroborated statements a complainant makes if the alleged harasser disputes them. The employer isn’t required to credit the statements on the “she-said side” absent circumstances indicating that not to do so would be unreasonable.
Further, the court noted that nothing in the Faragher or Ellerth opinions requires an employer to conduct a fullblown due process trial-type proceeding in response to sexual-harassment complaints. All that is required of an investigation is reasonableness in all of the circumstances.
MEETING INVESTIGATION STANDARDS
The Eleventh Circuit concluded that the employer’s investigation met at least the minimum standards for this type of case. The lesson for employers here is to conduct harassment investigations so that the process and results can withstand court scrutiny. Failure to meet these standards can result in employer liability for a supervisor’s unlawful conduct.