Vol. 14, No. 5a, Pg. 38. The Faragher-Ellerth affirmative defense as implied waiver of privileges: Is the defense a shield or double-edged sword?.

• Author: By Daniel F. Blanchard III

South Carolina Lawyer

2003.

Vol. 14, No. 5a, Pg. 38.

The Faragher-Ellerth affirmative defense as implied waiver of privileges: Is the defense a shield or double-edged sword?

38The Faragher-Ellerth affirmative defense as implied waiver of privileges: Is the defense a shield or double-edged sword?By Daniel F. Blanchard IIIEmerging case law involving the implied waiver of privileges has revealed a pitfall for employers defending against discrimination allegations. Employers in those cases unintentionally waived any privileges covering their internal investigations of employee discrimination complaints by relying on those investigations as an affirmative, defense in ensuing litigation involving the complaints. The courts refused to allow employers to use privileges as a sword rather than a shield and, consequently, forced employers to produce confidential information and materials gathered during internal investigations and required their legal counsel to divulge privileged communications and work product relating to the investigations.

40Courts have long recognized that notice of workplace discrimination triggers a duty upon employers under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., to take reasonable steps to investigate and eliminate the conduct. See Snell v. Suffolk County, 782 F.2d 1094, 1104 (2nd Cir. 1986); Ways v. Lincoln, 705 F. Supp. 1420, 1422 (D. Neb. 1988). In landmark companion decisions issued in 1998, the Supreme Court reinforced the importance to employers of taking affirmative steps to prevent discriminatory conduct from occurring and of investigating and responding to incidents of workplace discrimination once they become known. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).

The holdings in Faragher and Ellerth clarified that, even if a supervisor or manager sexually harassed a subordinate employee, the employer may escape "vicarious liability" under Title VII for the harasser's conduct by proving that it used "reasonable care" to prevent and correct any sexually harassing behavior and that the plaintiff employee "unreasonably failed" to take advantage of available antidiscrimination policies to bring the problem to the employer's attention before resorting to a lawsuit. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. This defense, commonly referred to as the "prompt remedial action" defense, applies only when the supervisor's or manager's conduct does not result in a "tangible employment action" against the employee such as a discharge, demotion or undesirable reassignment. Lower court decisions have extended the holdings in Faragher and Ellerth to apply to the other forms of discrimination that Title VII prohibits, including discrimination based on race, color, religion or national origin. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 186 n.9 (4th Cir. 2001).

By enabling employers to avoid liability in some circumstances based on proof that they undertook prompt remedial action in response to complaints of sexual harassment or discrimination, Faragher and Ellerth give employers a strong incentive to raise the defense in their responsive pleadings and to present evidence at the trial concerning their investigations of the complaints. Because the defense employs a "reasonable care" standard in analyzing the appropriateness of the employers' actions, the fact-finder must necessarily engage in a fact-intensive scrutiny of the extent, quality and details of the employers' investigations of the alleged discrimination to determine whether they satisfied their burden of proving the defense. See Thompson v. Town of Port Royal, 117 F. Supp. 2d 522, 529 (W.D. Va. 2000); Wellpoint Health Networks, Inc. v. Superior Court, 68 Cal. Rptr. 2d 844, 855-56 (Ct. App. 1997).

The Faragher-Ellerth defense focuses on the conduct of the employer's investigator in responding to the allegations of sexual harassment as...