The Affirmative
Defense Program
The five-pillar Faragher/Ellerth program that builds your documented defense before the EEOC charge arrives.
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.
What is the Faragher/Ellerth Affirmative Defense?
Two 1998 Supreme Court cases created a defense that may limit or avoid liability in qualifying supervisor-harassment matters. It is unavailable where the harassment culminated in a tangible employment action, and the employer must prove both elements.
"The employer must show two things: it took reasonable care to prevent and correct harassment, and the employee unreasonably failed to use the complaint procedures."
To qualify, you must prove:
- Reasonable care: documented policies, training, and complaint channels
- Prompt correction: investigated complaints and took action
- Employee's failure: the employee had a clear path to report but didn't use it
The catch: You have to build it before a complaint arrives. After the fact is too late.
One program. Five integrated
components. One system.
Each pillar exists in the marketplace separately. We deliver them as a unified system, because courts evaluate your defense as a whole.
Living Policies
Anti-harassment and complaint-procedure policies for your industry, state, and reality. Updated annually.
Targeted Training
Role-specific, state-compliant training documented to the individual. Satisfies the Ellerth standard.
Third-Party Hotline
Phone, email, and web. Answered by neutral third parties, timestamped, documented.
Documented Investigations
Video-documented third-party investigations formatted for EEOC, court, and counsel.
Ongoing Consulting
Quarterly check-ins, EEOC response, and proactive detection. The defense doesn't decay.
Disconnected vendors ≠ a defense
Courts look at whether you had a coherent system, not a checklist of separate contracts.
| Capability | Separate Vendors | empathiHR |
|---|---|---|
| Policies drafted for your state & industry | ⚬ | ✓ |
| Training tied to those specific policies | ✗ | ✓ |
| Hotline operators who know your playbook | ✗ | ✓ |
| Investigations by same team that trained staff | ✗ | ✓ |
| Single documentation trail for court | ✗ | ✓ |
| Annual refresh across all pillars | ✗ | ✓ |
From audit to operational
defense in 30–60 days
Compliance Audit
We map your handbook, training records, and incident response against the Faragher/Ellerth standard. You get a written gap report.
Build the Five Pillars
Policy drafting, training rollout, hotline activation, investigation playbook, and consulting cadence. 30–60 days to fully operational.
Document Everything
Each pillar generates evidence: training acknowledgments, call logs, investigation reports, distribution records.
Maintain Annually
Every 12 months: refresh policies, updated training, proactive check-in, and a one-hour leadership review.
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.
- Many EPLI policies require a documented anti-harassment program as a coverage condition
- Without it, your carrier may deny the claim
- The Affirmative Defense Program is the foundation EPLI assumes you already have
Without vs. With
- ✗ Vicarious liability, with nothing to raise
- ✗ No independent defense exists
- ✗ Liable even if the claim is contested
- ✓ Two-prong defense available
- ✓ May limit or avoid liability where it applies
- ✓ Unavailable after a tangible employment action
Every day without a defense
is another day of strict liability
Organizations that can't afford to be unprotected
Programs are scoped to your size, industry risk, and number of locations.
Multi-Location Businesses
Restaurants, dealerships, retail chains: anywhere supervisors interact with employees across sites.
Growing Organizations
Any employer with supervisors, the legal trigger for Faragher/Ellerth liability.
Risk-Conscious Leadership
Boards, owners, and executives who understand that compliance is cheaper than litigation.
Churches & Nonprofits
Faith-based organizations and nonprofits with unique reporting challenges and vulnerable populations.
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.
chris.jeans@empathihr.com
empathihr.com