Affirmative Defense in Sexual Harassment Litigation

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  • 0:00 Affirmative Defense Defined
  • 1:15 Common Affirmative Defenses
  • 2:55 Sexual Harassment Defense
  • 3:50 First Element
  • 4:50 Second Element
  • 6:45 Lesson Summary
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Lesson Transcript
Instructor: Shawn Grimsley

Shawn has a masters of public administration, JD, and a BA in political science.

Just because sexual harassment has occurred at the workplace doesn't necessarily mean an employer will be legally liable for the harassment. In this lesson, you'll learn about affirmative defenses and when they may be applicable to a sexual harassment case.

Affirmative Defense Defined

Lolita is the human resource manager for a game studio that has just been sued by a former employee for sexual harassment. Lolita is meeting with the company's attorney, Wendell, to develop a litigation strategy.

Upon reviewing the company's investigation file and the conclusions reached by the U.S. Equal Opportunity Commission finding reasonable cause to believe sexual harassment did occur, Wendell states that the plaintiff more than likely will be able to prove that she suffered workplace sexual harassment.

Just when Lolita was about to throw in the towel and authorize settlement, Wendell advises her that there may be affirmative defenses available that will permit the company to avoid liability even though workplace sexual harassment did occur if there is a viable affirmative defense. Lolita is confused how an employer can avoid liability even if the wrongful act is proven, so she asks Wendell to explain.

Lolita learns that an affirmative defense is a defense that is able to defeat a claim for liability even if the evidence completely supports the claim. In Lolita's case, a successful affirmative defense can defeat the claim of sexual harassment even if the plaintiff is able to prove that sexual harassment happened. Lolita's interest is piqued and she asks for more information.

Common Affirmative Defenses of General Application

Wendell explains that some affirmative defenses are generally applicable to all cases, including the present lawsuit concerning sexual harassment. Common affirmative defenses are based on jurisdictional grounds, challenging the authority of the court to either hear the case or award damages. For example, most claims, including sexual harassment claims, must be filed within a certain time or they cannot be brought. Statutes, commonly known as statutes of limitations, usually determine this deadline.

A court must also have personal jurisdiction over the parties to the lawsuit. If a court has personal jurisdiction over a defendant, it has legitimate authority over a party such that its decisions can be lawfully enforced. If the court lacks personal jurisdiction, a defendant who doesn't voluntarily submit to the court's jurisdiction, cannot be bound by that court's decision.

Another common affirmative defense is the argument that the plaintiff has presented a legal claim to the court that the court doesn't have the power to provide a remedy even if all the facts are true. For example, Title VII of the Civil Rights Act, which is a primary basis for federal sexual harassment claims, only applies to employers who employ at least 15 employees. If an employer employs less than 15 employees at the time of the harassment, there is no legal remedy for sexual harassment under Title VII against such an employer.

Lolita is interested, but disappointed. She knows none of these affirmative defenses applies to her company. Wendell offers some hope by explaining that there is another recognized affirmative defense specific to sexual harassment claims.

Sexual Harassment Defense - When Applicable

However, Wendell cautions Lolita on two overall threshold issues regarding this sexual harassment affirmative defense. First, he notes that the employer, not the plaintiff, has the burden to prove the defense by a preponderance of evidence - meaning that the employer must establish that it's more likely than not that the conditions required for the affirmative defense existed at the time.

Just as importantly, Wendell notes that this particular affirmative defense is not available if the plaintiff has suffered a tangible employment action because of the sexual harassment. Generally, a tangible employment action is some adverse employment decision to which an employee is subjected, such as firing, demotion, failure to promote, an undesirable transfer, undesirable work assignment or an adverse compensation or benefit decision. In simpler terms, if the employee has already been negatively affected by the harassment, this affirmative defense will not be available to the employer.

First Element

Fortunately, for Lolita's company, she doesn't believe that the employee suffered a tangible employment action and thus presses Wendell for more information on the affirmative defense. And he's happy to oblige.

The first element, as explained by the EEOC, an employer must establish is that 'the employer exercised reasonable care to prevent and correct promptly any harassment.' This boils down to whether the employer has a good:

  • Sexual harassment policy that defines and prohibits sexual harassment and provides an effective means of taking corrective action to remedy the harassment and its negative effects
  • Complaint and reporting procedures
  • Thorough and objective investigation process

Wendell notes that it's just as important that the employer actually follows through with the policies and procedures. The best-written sexual harassment policies and procedures will not save an employer from legal liability if the policies merely collect dust on the shelf and are unused.

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