What do you think of the Court not allowing the affirmative defense if there was a tangible employment action?

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pohnpei397 | College Teacher | (Level 3) Distinguished Educator

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Since this question asks for a personal opinion, it would be better if you would decide what your opinion is. I will discuss this case (I believe you are referring to Burlington Industries v. Ellerth) and give you arguments for each side.

In this case, Ellerth, an employee of Burlington Industries, claimed that the company was liable for her sexual harassment at the hands of a supervisor.  She claimed this even though she was promoted once during her 15 months on the job and even though she never made a formal complaint about sexual harassment through the company’s system.  She was, however, fired after 15 months and she claimed that the firing came about because she refused her supervisor’s advances.  Therefore, she claimed, the company was liable as well.

On the one hand, you can say that it is not fair to prevent the company from mounting an affirmative defense in this case. The affirmative defense allows the company to defend itself by saying that A) it acted to stop the harassment as soon as it found out about it and B) that the employee had failed to use the employer’s system to protect themselves from the harassment. It would seem that there is nothing more that the company could do.  If it sets up a system and the employee doesn’t use it, how is the company supposed to know about the harassment?  If it acts as soon as it hears of the harassment, what more could it have done?

On the other hand, we can argue that once a tangible employment action has taken place, the harm has been done.  The company has put a supervisor in a position where he (in this case) could harm a worker and the supervisor has actually done something that did result in harm (Ellerth being fired).  Because the employee was subjected to a tangible employment action, the Court needs to rule in their favor.  In short, we can argue that once the employee is harmed in a tangible way by the harassment, something has happened that is so bad that the company needs to be held liable.

Which of these arguments do you think is more valid?

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