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What You Need to Know About the Faragher/Elerth Defense

If you were sexually harassed at your New York City workplace, you have the legal right to take your employer to court. You deserve compensation for your trauma, and you may help prevent future victims from enduring the same distress. Once you file a lawsuit, your employer may either deny the abuse took place, or they may use an affirmative defense such as the Faragher/Elerth Defense. An affirmative defense means the defendant acknowledges the harassment occurred, but the defendant claims he is not liable because certain actions excuse the unlawful conduct.

Named after two 1998 Supreme Court cases, Ellerth, and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Faragher/Elerth Defense precludes employer liability based on supervisor harassment where:

  1. the employer exercised reasonable care to prevent and promptly correct the wrongful behavior; and
  2. the harassed employee failed to “take advantage of any preventative or corrective opportunities that were provided.”

The first condition asks whether the employer had a reasonable policy to prevent harassment, and whether the employer actually followed its policy. The second requirement asks if the employee “acted unreasonably” with regard to preventing and correcting the harassment. For example, your employer may claim you didn’t follow correct procedures for reporting workplace harassment, therefore he is not liable in a court of law. 

It is important to note that the Farragher/Ellerth Defense is available only to employers when an employee claims harassment based on supervisor behavior. The Defense is unavailable where the claim for harassment is based on the employer’s negligence, or where the supervisor’s conduct resulted in a tangible employment action, such as termination.

For more information, consult a New York City sexual harassment attorney.

The Derek Smith Law Group, PLLC handles a multitude of cases that involve sexual harassment in New York City. For further information, please feel free to call us at 212-587-0760 or toll-free at 1-877-4NYLAWS or email at dslaws@msn.com.

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