Chapter 3 - § 3.6 • DEFENSES TO TITLE VII CLAIMS

• Jurisdiction: Colorado

§ 3.6 • DEFENSES TO TITLE VII CLAIMS

Employers should and do raise defenses to the merits of an employee's claim by attacking elements of the prima facie case as discussed in the prior sections. In addition to those arguments, common defenses raised are briefly discussed in this section.

§ 3.6.1—Nondiscriminatory Conduct Defense

The most common defense raised by employers to claims of discrimination under Title VII is that the employment decision was made for a nondiscriminatory reason, such as poor performance, misconduct, staff reduction, excessive absenteeism, lack of qualifications, and so forth. While employers rarely defend employment decisions by stating that the decisions were based on factors such as favoritism or mistake, such reasons are defensible against Title VII claims. Sanchez v. Philip Morris, Inc., 992 F.2d 244, 247-48 (10th Cir. 1993); see also Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997) (a personality conflict is not evidence of improper discrimination). These types of defenses are all fact specific and have to be analyzed on a case-by-case basis. Rea v. Martin Marietta Corp., 29 F.3d 1450 (10th Cir. 1994) (economic conditions and low department ratings were legitimate business reasons for termination); EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1318 (10th Cir. 1992) (violent behavior of plaintiff was a facially neutral reason for termination).

§ 3.6.2—Faragher/Ellerth Affirmative Defense

Under the Faragher/Ellerth framework, an employer is subject to vicarious liability for actionable sexual harassment perpetrated by a supervisor with immediate (or successively higher) authority over the victimized employee in two situations. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). First, "when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment," the employer is strictly liable and "[n]o affirmative defense is available." Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at 765. Second, in the absence of a tangible employment action, the employer is liable unless it can prove an affirmative defense by a preponderance of the evidence. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. See Helm v. Kansas, 656 F.3d 1277, 1285 (10th Cir. 2011) (applying the Faragher/Ellerth framework to an employee's constructive knowledge of the sexual harassment policies in the employment handbook).

The mere promulgation of a sexual harassment policy that is reasonable on its face does not constitute an adequate preventative measure; the employer must also disseminate the policy. Helm v. Kansas, 656 F.3d 1277, 1288 (10th Cir. 2011). Also, an employer acts reasonably as a matter of law to prevent harassment if it adopts valid sexual harassment policies and distributes them to employees via employee handbooks, even if it provides no sexual harassment training or provides...