BY Lindy Korn, Esq.

In Faragher v. City of Boca Raton and Burlington Industries v. Ellerth,

The U.S. Supreme Court ruled that an employer is vicariously liable for sexual harassment committed by its supervisors. However, if the employee was not subject to an adverse employment action, the employer can assert an affirmative defense by showing it had reasonable mechanisms in place to prevent and correct any discriminatory practices and the employee unreasonably failed to take advantage of them. Such a defense may prove to be a "bullet proof vest".

In Gunnell v. Utah Valley State College, an employee complained of sexually offensive behavior by two male supervisors. Immediately after she complained to her employer the behavior stopped. Her Title VII sexual harassment suit was dismissed in the lower court because the harassment stopped after she complained.

The U.S. Court of Appeals for the Tenth Circuit ruled that an employer could NOT avoid liability for sexual harassment by its supervisors merely because it promptly put an end to the harassment. It is one of the first cases in which the Court went on to define the essential elements of the newly created affirmative defense.

Returning the case to the lower court, the appeals court instructed it to consider the following:

Stay Tuned for other refinements of the newly created Affirmative Defense!!