What is Affirmative Defense Against Sexual Harassment for Employers?
A sexual harassment lawsuit can have a devastating impact on your company. For employers, the actions of one bad apple can damage your entire business financially, reputationally, and personally.
If you are facing allegations of a hostile work environment, you need to talk to your lawyer about whether you have an affirmative defense. It may be the key to avoiding the most serious consequences of a sexual harassment suit.
What is an Affirmative Defense, Generally?
An affirmative defense means you have credible evidence that rules out criminal or civil liability. Even if your company is technically liable, you may still avoid being held responsible.
In a criminal case, for example, a defendant can kill someone and still be found not guilty by reason of insanity. Insanity negates the ability to form intent, which is an essential element of a murder charge.
Insanity is not an affirmative defense to sexual harassment claims. However, a company can establish an affirmative defense by showing it proactively took measures to create a compliant, harassment-free workplace and that those measures were in place before the alleged conduct occurred.
What are the Components of a Sexual Harassment Claim in California?
California's Fair Employment and Housing Act (FEHA) prohibits sexual harassment in the workplace. The claims are handled under FEHA / EEO Defense law and generally fall into one of two categories...
Quid pro quo harassment — a supervisor or someone with authority attempts to trade preferential treatment for sexual favors. For example, a boss promising a promotion in exchange for a sexual relationship, or threatening termination if a subordinate refuses to go on a date.
Hostile work environment — the workplace as a whole is affected by severe and pervasive sexual conduct or comments. This can include nude photos displayed in cubicles, unchecked physical touching, or repeated sexual remarks that go without correction.
An employer may be able to use an affirmative defense in hostile work environment cases, but only if certain criteria are met.
What is the Affirmative Defense for Sexual Harassment?
Two Supreme Court cases established the affirmative defense in hostile work environment cases: Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth.
The resulting strategy is called the Faragher-Ellerth Defense.
To successfully use this defense, an employer must credibly establish three facts:
The employer did not take any retaliatory action against the plaintiff, meaning the person bringing the lawsuit was not fired, demoted, or otherwise punished for using the legal system.
The employer used reasonable care to prevent this kind of behavior and tried to correct it promptly after learning it occurred.
The plaintiff did not take advantage of the employer's preventive or corrective measures.
All three elements must be present. Missing even one can defeat the defense.
For a deeper look at how retaliation claims work, see our guide on Protected Leave Litigation and retaliation defense.
Hypothetical Examples of the Affirmative Defense
When the defense would hold:
A sales clerk tells her manager that her direct supervisor has been groping her repeatedly while on duty. The manager calls the supervisor into the HR office, references the employee policies and procedures that specifically prohibit this conduct, and suspends the supervisor with a warning that further violations will result in termination. A year later, with no repeat incidents, the sales clerk files a sexual harassment suit.
Here, the company can assert the affirmative defense. The manager did not punish the employee for complaining; he promptly disciplined the offending supervisor, and the plaintiff waited an unreasonable length of time before filing suit.
When the defense would not hold:
If, after making the complaint, the sales clerk was given fewer shifts or moved to the stockroom
If the manager ignored her complaint or failed to investigate and discipline the supervisor
If the sales clerk contacted a lawyer shortly after making the complaint, without receiving a satisfactory response
Understanding when the defense fails is just as important as knowing when it holds. If you are uncertain where your situation stands, our Termination Risk Assessment guide covers how courts evaluate high-stakes employment decisions.
How to Lay the Foundation for an Affirmative Defense
No employer wants to face a sexual harassment suit. The best time to build your defense is before any complaint is ever filed.
A good starting point is a clear, well-drafted policies and procedures document that specifically addresses harassment. Employees need to know what conduct is prohibited, how to report it if they experience it, and what the consequences are for violators. This documentation alone can be critical evidence if a claim is ever made against your business.
Annual sexual harassment training for all employees is another strong measure. Courts treat this as evidence that an employer took proactive steps to prevent such activity, which is exactly what the Faragher-Ellerth Defense requires.
If you combine a solid handbook with regular documented training, you build the foundation of an affirmative defense before a lawsuit ever arrives. Courts treat this as evidence of proactive steps. Our California Employment Law Compliance Guide is a good starting point for auditing whether your current policies would hold up.
Get Legal Help Before It's a Crisis
A skilled employment defense lawyer can help you put practices in place that reduce the likelihood of sexual harassment and discrimination claims. They can help create compliant policies, establish response procedures, and make sure your workplace is built on a solid legal foundation.
If you are facing or want to prevent a sexual harassment or discrimination claim, DefendMyBiz represents California employers exclusively. We'll assess your exposure, review your current policies, and build a defense strategy tailored to your business. Contact us today for a free consultation.
FAQs
Can an employer use an affirmative defense for quid pro quo sexual harassment?
What happens if the employee never reported the harassment internally?
Does having an employee handbook guarantee an affirmative defense will succeed?
How soon should an employer respond to a harassment complaint?
Is annual sexual harassment training legally required in California?
Disclaimer: The above content is for informational purposes only. This is not legal or tax advice. Laws, IRS guidance, and withholding requirements can change, and outcomes depend on specific facts. You are advised to contact a qualified attorney for any legal advice.
