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Affirmative Defense

The Affirmative Defense Program

When a supervisor harasses an employee, the Supreme Court created an exit ramp from automatic vicarious liability. It's called the Faragher/Ellerth Affirmative Defense, and most employers don't have it because most vendors deliver one piece of the system. We deliver all of it.

Talk to a Compliance Expert See the Five Pillars
Why The Defense Matters

Without it, you have nothing to raise

The Supreme Court left employers a route out of vicarious liability for supervisor harassment, where no tangible employment action was taken and the employer can prove it acted reasonably. Most employers never build the record that route requires, and find that out when the EEOC charge arrives.

Strict liability
Default rule for supervisor harassment without an Affirmative Defense
You're liable whether you knew or not.
$660M
Recovered by the EEOC for workers in FY2025
Includes a record $528M recovered before lawsuits were ever filed.
Source: EEOC FY2025 Annual Performance Report
96.5%
Of resolved EEOC lawsuits in FY2025 ended in a settlement or judgment in the workers' favor
An undocumented defense is no defense.
Source: EEOC Office of General Counsel, FY2025 report
The Five Pillars

One program. Five integrated components. One coordinated system.

Each pillar exists in the marketplace separately. We deliver them as a unified system with one accountable provider, because the courts evaluate your defense as a whole, not as a stack of disconnected vendors.

Pillar 1: Living Policies

Anti-harassment, anti-discrimination, and complaint-procedure policies written for your industry, your state, and your operating reality. Updated annually as the law moves.

Pillar 2: Targeted Training

Annual harassment and discrimination training built to document the reasonable care to prevent that Faragher/Ellerth requires. Role-specific. State-compliant. Documented to the individual.

Pillar 3: Third-Party Hotline

A reporting channel that isn't your HR team. Phone, email, and web, answered by neutral third parties, timestamped, documented. Removes the most common Faragher defeater: "the employee was afraid to report."

Pillar 4: Documented Investigations

When a complaint comes in, video-documented third-party investigations capture statements before contamination. The investigation file is the evidence your defense stands on, formatted for the EEOC, the court, and your counsel.

Pillar 5: Ongoing Consulting

Quarterly compliance reviews, EEOC charge response, corrective action guidance, and proactive issue detection through confidential quarterly check-ins. The defense doesn't decay between incidents.

Insurance Reality

Your EPLI isn't a substitute

EPLI pays your defense costs and settlements. It doesn't prevent the lawsuit, reduce premiums, or establish the defense itself.

Without the Affirmative Defense
  • Vicarious liability for supervisor harassment, with nothing to raise against it
  • The reasonable-care element cannot be proven without a record of it
  • Liable even when the underlying harassment is admitted
With the Affirmative Defense
  • Two-prong defense available: reasonable care plus the employee's unreasonable failure to report
  • Where it applies and both elements are proven, liability may be limited or avoided
  • Unavailable if the harassment culminated in a tangible employment action, and must be documented before the incident

Many EPLI policies require a documented anti-harassment program as a condition of coverage. Without one, your carrier may deny the claim. The Affirmative Defense Program is the foundation EPLI assumes you already have.

How It Works

From compliance audit to operational defense in 30-60 days

A predictable, repeatable workflow that builds a strong, documented defense before the EEOC charge arrives.

  1. 1

    Compliance Audit

    We map your current handbook, training records, complaint history, and incident response practices against the Faragher/Ellerth standard. You receive a written gap report showing exactly where you're exposed.

  2. 2

    Build the Five Pillars

    Policy drafting, training rollout, hotline activation, investigation playbook installation, and consulting cadence. Typically 30-60 days from contract to fully operational.

  3. 3

    Document Every Element

    Each pillar generates evidence: training acknowledgments, hotline call logs, investigation reports, policy distribution records. We maintain the file your attorney will need.

  4. 4

    Maintain Annually

    Every 12 months we refresh policies for legal changes, deliver updated training, run a proactive check-in, and sit with leadership for a one-hour review. The defense stays current.

FAQ

Common questions

What is the Faragher/Ellerth Affirmative Defense, in plain English?
Two 1998 Supreme Court cases (Faragher v. Boca Raton and Burlington Industries v. Ellerth) created a defense that may limit or avoid liability in qualifying supervisor-harassment matters. Three limits matter. First, it applies to harassment by a supervisor, not to every discrimination or harassment claim. Second, it is unavailable when the harassment culminated in a tangible employment action such as a firing, demotion, or reassignment. Third, the employer must prove both elements: that it took reasonable care to prevent and promptly correct harassment, and that the employee unreasonably failed to use the complaint procedures offered. Where it does apply and both elements are proven, it can defeat the claim even when the underlying conduct is admitted. None of that is automatic, and the record has to exist before the complaint arrives.
Why doesn't my EPLI insurance already give me this?
EPLI (Employment Practices Liability Insurance) pays your defense costs and settlements. It doesn't prevent the lawsuit, doesn't reduce premium impacts on future renewals, and doesn't establish the legal defense itself. Many EPLI policies actually require you to have a documented anti-harassment program, training, and complaint procedure as a condition of coverage. Without those, your carrier may deny the claim. The Affirmative Defense Program is the foundation EPLI assumes you already have.
How is this different from buying a training course or a hotline service?
Training alone, hotlines alone, and policies alone each support pieces of the defense, but courts apply the defense holistically. They look at whether the employer had a coherent system, not a checklist of disconnected vendors. We deliver and document all five pillars as one program with one accountable provider. The same team that drafts your policies trains your staff, fields your hotline calls, runs your investigations, and consults on your corrective actions. That coherence is what wins cases.
What's a typical investment?
Programs are scoped to organization size, industry risk profile, and number of locations. A multi-location restaurant group is materially different from a 30-person church or a single-rooftop dealership. Most clients invest less than the cost of a cup of coffee per employee per month, far less than a single day of harassment litigation and a fraction of one trial payout. We'll show you exact pricing during your compliance assessment.
How long until we're protected?
The record starts building the moment the program is operational, and for most clients the five pillars are installed in 30 to 60 days. Be careful with the word protected, though. The defense is assessed against what you actually had in place when the conduct occurred, so a program installed today does nothing for an incident last quarter. It is also unavailable where the harassment culminated in a tangible employment action, and it does not reach every claim. What starting now does is begin the reasonable-care record for everything that happens after.
10-Slide Overview

View the Affirmative Defense Program pitch deck

The full program walk-through: the legal foundation, the five pillars, the comparison table, and what it costs to skip it. Interactive slides, keyboard-navigable, shareable link.

Open the deck

Build your defense before you need it.

Most employers find out they didn't have a defense the day they receive an EEOC charge. By then, it's too late. A 30-minute compliance assessment shows you exactly where you stand.

Schedule Your Compliance Assessment Call 866.240.6618