Application of Affirmative Defense in Workplace Discrimination Cases

The Faragher/Ellerth affirmative defense may apply in certain supervisor-harassment cases where the harassment did not result in a tangible employment action. It requires the employer to establish reasonable care to prevent and promptly correct harassment, and that the employee unreasonably failed to use preventive or corrective opportunities or otherwise avoid harm. It is not a general defense to every discrimination claim. See the EEOC explanation and consult employment counsel about a particular matter.

Clear policies, accessible reporting options, training, and a prompt response help an organization demonstrate what it did to prevent and address concerns. Records of interviews, findings, decisions, and follow-up help counsel evaluate the facts. Having a program in place does not automatically establish a defense.

The operational value reaches beyond a potential defense. A consistent process helps employees raise concerns and helps managers know what to do next. empathiHR supports that work through training, reporting channels, thorough investigations, management guidance, and organized documentation, reducing the work HR has to reconstruct later.

empathiHR gives owners, HR teams, and managers experienced help with employee matters: management guidance, write-ups, termination reviews, investigations, documentation, and EEOC responses. Call 866-240-6618 or email hello@empathihr.com to talk with our team.