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Newsletter Issue 3

Practical Approaches
to Resolving EEO/AA Problems
Issue #3
Two Prongs of an Affirmative Defense

Some times it may appear that an employer has no defense against complaints of sexual harassment or other EEO issues. However, in the cases of Ellerth and Faragher the Supreme Court declared: “Employers must show they exercised reasonable care to prevent and promptly correct any sexually harassing behavior.” As several court decisions applied these criteria the Affirmative Defense doctrine developed.

Affirmative defense has two prongs:

  • The employer exercised reasonable care to prevent and promptly correct harassment.
  • The employee unreasonably failed to report the harassment or otherwise avoid harm.
The employer’s attention should be drawn to the first prong of the defense as it is within the employer’s control. Two major actions should be taken to respond to the first prong effectively.
  • Have a clear, fully disseminated Sexual Harassment policy that gives employees multiple sources for reporting harassment and ensure the policy is effectively enforced.
  • Train supervisors and employees on sexual harassment and other EEO issues.

It is vital that the training clearly explains the policy and procedures to follow in preventing and reporting harassment and other forms of discrimination. Everyone trained should sign a document or list indicating that s/he attended the training. Additionally, a copy of the policy should be given to each employee and have the employee sign a receipt stating that s/he received a copy. This places responsibility on the part of the employee to take appropriate action to report the harassment and avoid harm.

There is no way to overstate the need for training employees, especially supervisors. If an employer cannot show that it has an effective, enforced harassment policy and/or cannot demonstrate that employees were trained, the affirmative defense will not apply. A quick review of court cases over the last few years will reveal that failures of this nature has cost employers many millions of dollars in penalties. The seriousness of this matter can be realized in the enactment of California State Law 1825 that requires employer to give every supervisor 2 hours of Sexual Harassment Training every two years. Other states are now requiring the same program.

You might review the RPL Internet training programs as our EEO training courses meet all state requirements.

Age Discrimination Case

James Hurley, 72 years old, applied for a job with RaceTrac Petroleum. He completed the application and attended the employee orientation meeting. He took the test on company policies and procedures. He reported to the store at Trussville, AL and was told by the manager that he would not hire him because he was 72 years old. He filed a complaint and it was processed through the court system to a jury trial and eventually to the 11th Circuit Court. At the trial the company made an unconditional job offer to Hurley and he unreasonably refused it. The reason for refusal was that Hurley relied on the advise of his attorney that the job offer was a settlement offer and not a job offer. The District Court found that the company had violated the ADA but awarded no damages. Hurley appealed for relief the decision to the 11th Circuit. The 11th Circuit stated “Likewise, where a plaintiff requests reinstatement or back pay, once an employer makes a “good faith” offer of reinstatement, a plaintiff who rejects the offer forfeits his right to such equitable relief unless his refusal of the employer’s offer was reasonable.” In this case it was determined to be unreasonable. He had no claim for damages. Ref. Hurley v. RaceTrac Petroleum, Inc. 11th Cir., No. 05-10119, 8-22-05.

This is an interesting case since the company tried to correct the problem by taking an appropriate corrective action, making a job offer, and when the Plaintiff rejected the company’s reasonable offer he lost his request for relief.

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