The Faragher defense is a way for employers to avoid being held responsible for discrimination by their employees. In order to use this defense, the employer has to prove that they had a good system in place to prevent discrimination and that the employee didn’t take advantage of it. Even though some people were worried that this defense would be used too often, the courts have made it clear that they will carefully consider each case before allowing an employer to use the Faragher defense. The plaintiff’s claims of bad faith failed because the defendant did not properly handle harassment complaints. Issuing written policies but not enforcing them, not investigating complaints, and making sarcastic remarks when complaints were made all contributed to the failure of the defense. In a specific case, the human resources vice president’s lack of communication with the complainant during the investigation may have helped the plaintiff’s case. If there is conflicting testimony about whether the company shared its rules about not harassing others, or about what those rules are, a jury will have to decide. Employers can’t just focus on stopping “sexual” harassment, they have to address all kinds of gender-based mistreatment. Even if a company has a strict policy, they can still be in trouble if something really bad, like a rape, happens before an employee had a chance to complain.
Employers can say who you should tell if you’re being mistreated, but they can’t insist on strict rules if they find out about abuse in other ways. For example, they can’t ignore it if a manager should have reported the mistreatment, or if someone the victim was supposed to tell laughed about it. They also have to take it seriously if a coworker or a labor union brings it up. It doesn’t matter how the company finds out about the mistreatment – what’s important is that they knew about it.
What should the company do once they know about mistreatment? They should act quickly to suspend or fire the person responsible. For example, in one case a supervisor was suspended three days after an employee complained about a “consensual affair,” and then was fired. The biggest mistake a person filing a lawsuit can make is to keep quiet about any harassment or discrimination they experience at work. The court has ruled that if a person doesn’t report the harassment, it may affect their case. However, if a person is afraid of retaliation, they may have a valid reason for not reporting it. It’s important for the employer to show that the person had the opportunity to report the harassment and chose not to. The defense for the employer doesn’t apply if the person experienced a significant negative change in their job, like being demoted or having their pay cut. Overall, the rules around harassment and discrimination cases continue to change and evolve. William R. Amlong is a lawyer in Ft. Lauderdale who worked on a case for Beth Ann Faragher. He wrote an article about the case, which was published in a newsletter. This article is being shared by the Labor and Employment Law Section.
Source: https://www.floridabar.org/the-florida-bar-journal/faragher-v-city-of-boca-raton-a-seven-year-retrospective/
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