The Eleventh Circuit affirmed today a summary judgment against a woman who alleged that her employer subjected her to a hostile work environment in violation of Title VII, which prohibits sex discrimination in employment.  In reaching its conclusions, the court clarified what an employer must do to establish an affirmative defense to a Title VII claim that doesn’t involve an adverse employment action.   Baldwin v. Blue Cross/Blue Shield of Alabama, No. 05-15169 (11th Cir. Mar. 19, 2007).

The defense bears a ponderous name:  FaragherEllerth, after a pair of 1998 Supreme Court decisions, Faragher v. City of Boca Raton, 524 U.S. 775  (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).  It also has two prongs, requiring the employer to show (1) that it exercised reasonable care to prevent and correct sexually harrassing behavior and (2) that the employee unreasonably failed to take advantage of any preventive or corrective measures that the employer offered.

The court detailed the crude behavior of the Ms. Baldwin’s co-employees before holding that Blue Cross established the Faragher-Ellerth defense as a matter of law.  The court’s highly readable opinion deserves a quotation or two:

  • Regarding the first prong, "there is nothing in the Faragher or Ellerth decisions requiring a company to conduct a full-blown, due process, trial-type proceeding in response to complaints of sexual harassment.  All that is required of an investigation is reasonableness in all of the circumstances, and the permissible circumstances my include conducting the inquiry informally in a manner that will not unnecessarily disrupt the company’s business, and in an effort to arrive at a reasonably fair estimate of truth."
  • Still on the first prong, even a bad investigation won’t defeat the defense because "a reasonable result cures an unreasonable process. . . . Title VII is concerned with preventing discrimination, not with perfecting process."

The court also concluded that the Baldwin’s rejection of remedial measures (counseling of the harasser or transfer to another office) and delay in reporting incidents of sexual harassment established the second prong of the defense.

The argument that prompted the headline for this post concerned Baldwin’s retaliation claim.  She asserted that Blue Cross shouldn’t have fired her for refusing to work with her boss-harasser because she didn’t really mean that she wouldn’t work with him.  The court rejected "Baldwin’s ‘had-my-fingers-crossed’ argument because what counts is not what she believed about her stated intent but what the decision maker at Blue Cross believed".

Blawgletter predicts that HR people and in-house counsel will enjoy reading Baldwin.  It puts some real teeth into the Faragher-Ellerth defense by validating their good faith efforts to resolve discrimination claims amicably.

Barry Barnett

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