Lack of Timely Anti-Harassment Training Dooms Employer’s Attempt To Invoke the Faragher-Ellerth Defense
In Lockhart v. Energy Transfer Partners, LP, 2:20-cv-258 (W.D. Penn. 2022), the court provided employers with an important reminder on the need to have timely and robust anti-harassment training and procedures if they hope to successfully invoke the Faragher-Ellerth defense.
As a brief overview, the Faragher-Ellerth defense (named from the two Supreme Court cases that created it in 1998) is an affirmative defense that employers may use against claims of hostile work environment harassment if:
There was no tangible employment action taken against the plaintiff, such as a termination, demotion, etc.
The employer exercised reasonable care to prevent and promptly correct the harassing behavior. As we’ll soon see, while this at a minimum requires the implementation of an anti-harassment policy, courts often require employers to have additional preventative care measures in place for the defense to apply.
The plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. This can include, for example, not reporting the alleged harassment pursuant to the employer’s anti-harassment policy.
In Lockhart, Energy Transfer moved for summary judgment on their former employee’s hostile work environment claim based on the Faragher-Ellerth defense. In support, it pointed to its anti-harassment policy and complaint procedure, its required anti-harassment training, and the fact the plaintiff acknowledged the anti-harassment training at the time of his hire but did not report the alleged harassment for more than one-year after it allegedly began.
The court found that Energy Transfer failed to prove the defense as a matter of law. The court found it failed to prove the “reasonable care” element where, among other things:
the plaintiff was able to go 12-months without completing the alleged mandatory harassment training;
the plaintiff and the alleged harasser took the same anti-harassment training; and
there was no one in the office tasked with monitoring the integrity of the work environment other than the alleged harasser.
The court also found that a question of fact existed as to whether the plaintiff unreasonably failed to invoke Energy Transfer’s anti-harassment policy. Among other things, the court concluded that a jury could find that “defendant’s lax approach in having plaintiff complete this [anti-harassment] training was a contributing factor in plaintiff not making management [] aware of [the alleged harasser’s] offensive behavior at an earlier date.”
The Takeaway
The proper implementation of an anti-harassment policy can be just as if not more important than the policy itself. This includes ensuring that all employees receive prompt and regular training on the policy and having multiple avenues for employees to raise potential violations of the policy. Employers should also strongly consider providing supervisors and managers additional training with respect to the policy and their unique obligations and expectations. As the Lockhart case showed, a failure to do so can leave employers looking to invoke the Faragher-Ellerth defense with an uphill battle.