Faragher v. City of Boca Raton: a seven-year retrospective.

• Author: Amlong, William R.

The most heralded legacy of the 1998 U.S. Supreme Court decision in Faragher v. City of Boca Raton, 524 U.S. 775 (1998)--a plaintiff's victory allowing vicarious liability for hostile-environment discrimination--is, ironically, the "Faragher defense." While an employer is liable for discriminatory behavior by supervisory personnel, it can--so long as no "tangible employment action" such as termination, demotion, or transfer occurs--plead and prove a two-prong affirmative defense: One, that it had an effective mechanism to prevent discrimination and, two, that the employee unreasonably ignored it. (1) This has evolved over seven years into a fact-intensive matrix for fairly imposing liability on employers.

Despite apprehension from commentators that the affirmative-defense exception would swallow the rule of vicarious liability, (2) appeals courts have marched beyond buzz words. While recognizing that the Supreme Court's goal was to polish the preventative facet of Title VII, and not to provide a pot-of-gold "temptation to litigate," (3) circuit courts uniformly have signaled that the "Faragher defense" inquiry is rigorous.

Plaintiffs' unsubstantiated "bad faith" claims fail, (4) but neither "[g]eneralized references" to an anti-harassment policy" (5) nor "the meager action of adopting, but not promulgating, a sexual harassment policy" (6) will suffice. What else does not work? "[I] ssuing written policies but not enforcing them, painting over offensive graffiti every few months only to see it go up again in minutes, [and] failing to investigate sexual harassment as it investigated and punished other forms of misconduct" fall short. (7) Evidence that an employer "did not handle the internal investigation properly or timely" can defeat the defense. (8) Likewise, responding to two women who "complained at virtually every available opportunity" by telling one that she was "overreacting" punctured the Faragher defense. (9) So did having an anti-harassment policy, but telling a victim that his racist tormentor "did not mean anything by his language." (10) Telling an employee to report future incidents of harassment, without actually investigating current allegations, "did not remedy the harassment that had already occurred, and was not adequate to deter future harassment." (11) Sarcastically inquiring whether a black employee wanted the company to tear down a wall on which a racist death threat had been painted twice was "worse than no response at all." (12) Who can be the plaintiff's strongest witness? In Cadena v. Pacesetter Corp., 224 F.3d 1203, 1209 (10th Cir. 2000), (13) it may have been the human resources vice president who never spoke to the complainant during her "investigation" and was unsure...