Five pillars. One coordinated system.
The Faragher/Ellerth Affirmative Defense is not a checklist. It is a structural standard the Supreme Court built in 1998 and lower courts have refined every year since. Our methodology is engineered to that standard, pillar by pillar.
What we look at, and what we deliver
Every empathiHR engagement begins with a written assessment across these five pillars. The output is a document your general counsel, board, and outside employment counsel can all read.
Policies & Procedures
What's actually in your handbook, and whether it would survive a deposition.
We review your employee handbook, anti-harassment policies, complaint procedures, and supervisor protocols against the prevailing legal standard in every state where you employ people. Most handbooks have not been touched in two-plus years; many were drafted from generic templates that fail at least one state's requirements.
- Plain-English audit of every policy that touches harassment, discrimination, retaliation, and complaint handling
- Gap analysis against federal law and each operating state
- Drafted updates ready for counsel review
Training
Manager and employee training, documented to the individual so it can be produced later, not just consumed.
Generic LMS courses do not establish the 'reasonable care to prevent' prong of Faragher/Ellerth. We assess what your training covers, who has actually completed it, and whether it satisfies the duration, content, and frequency requirements in every jurisdiction your employees work in. Then we recommend or deliver training that closes the gaps.
- Roster-level completion audit against each applicable state mandate
- Content review against the Affirmative Defense standard
- Multi-state training matrix with deadlines per jurisdiction
Employee Complaint Processes
How easy is it to report, and how defensible is the path the report takes?
We review every method of recourse available to your employees: the hotline, anonymous channels, supervisor reporting, HR escalation, ethics committees. We evaluate whether complaints are documented from intake, investigated neutrally, and closed with the records a future plaintiff's attorney will subpoena.
- Map of every reporting channel and its documentation discipline
- Test-call audit (with permission) of hotline and escalation paths
- Recommendations for confidential, neutral, evidentiary intake
Current & Past Complaints
Three years of complaint history, read for patterns, and read against the standard of care.
We review every complaint, internal investigation, and informal escalation from the past three years. We look for documentation gaps, statute-of-limitations exposure, response patterns, and supervisor behaviors that recur. We do not relitigate closed matters; we identify the structural risks that are still active.
- Three-year complaint inventory with severity scoring
- Investigation-quality review against neutral-investigator standards
- Active-risk register with prioritized remediation
Enforcement Actions
Has the EEOC, DOL, or state agency already been to your door? What happened next?
We pull and review every formal enforcement action (EEOC charges, DOL audits, state human rights complaints, OSHA matters, NLRB filings) over the past five years. We look at how each one was responded to, what was conceded, what the resulting settlement or determination said, and what the agency's file would still show today.
- Five-year enforcement-action inventory across federal, state, and local agencies
- Response-quality review and pattern analysis
- Agency-relationship debrief: what your file currently looks like
Affirmative Defense as the design goal
Every pillar exists because Faragher v. City of Boca Raton and Burlington Industries v. Ellerth (1998) created an affirmative defense with two elements: (1) the employer exercised reasonable care to prevent and promptly correct harassment, and (2) the employee unreasonably failed to use the preventive or corrective opportunities the employer provided. The Five Pillars build and document element one, and a real reporting channel is what makes element two possible to argue. We are not designing for compliance theater; we are designing for the legal standard.
We are not a generalist consulting firm
We do not run engagement surveys, write your DEI strategy, build your compensation program, or coach your executives. We do one thing (workplace misconduct prevention, response, and the Affirmative Defense) and we do it as a unified practice. If you need broader HR consulting, we will refer you to firms we trust.
Start with the assessment. Decide everything else after.
The Five-Pillar assessment is the entry point to every empathiHR engagement. You'll receive a written report on each pillar, and you decide what, if anything, to do next.