Faragher/Ellerth Affirmative Defense - Heading Down A Slippery Slope?

Several summers ago, the Supreme Court forged a compromise on the issue of employer liability for the sexually harassing conduct of their supervisors. Absent a tangible employment action, employers could avoid liability by proving an affirmative defense which had two prongs: that the employer had a policy designed to prevent sexual harassment and that the employee unreasonably failed to take advantage of the policy. Case law is now developing as to the parameters of the affirmative defense. Yesterday, in Reed v. MBNA Marketing System, Inc. the 1st Cir. showed how elusive the boundaries of the second prong can be.



In this case, a 17 year old employee claimed that her supervisor made sexual comments to her, but more importantly after she baby sat for him, he forced her to have oral sex at his house. He told her not to report the event as they would both lose their jobs and that his father had influence with the owner of MBNA. She continued to work without reporting the event and later resigned. In order to make more money she subsequently returned to the Bank, and ultimately was assigned to the same supervisor. When he again began making sexual comments, she reported his conduct including the assault the prior summer. The Bank immediately began an investigation, but the supervisor resigned before it could be completed. She continued to work at the Bank, and finally resigned and then filed a charge for sexual harassment and brought suit. The District Court granted summary judgment for the employer on the basis of the affirmative defense. While noting that it was an extremely close call, the Circuit Court held that given her age, the threat of retaliation and the claim of family influence, that a jury would not be irrational in finding that she had a reasonable reason for not reporting the earlier assault. If an employer cannot prevail under these circumstances, it seems employers, at least in the First Circuit, may anticipate having to prevail on affirmative defenses after a full blown trial. Hardly an inviting prospect.