Document Type

Working Paper

Publication Date

7-11-2014

SSRN Discipline

Legal Scholarship Network; Law & Society eJournals; Law & Society: Private Law eJournals; LSN Subject Matter eJournals; Humanities Network; Management Research Network; Employment, Labor, Compensation & Pension Law eJournals

Abstract

In 1998 the Supreme Court in Burlington Industries Inc v Ellerth and Faragher v City of Boca Raton set forth a twopronged affirmative defense for employers to avoid vicarious liability for sexual harassment by supervisors Under both Ellerth and Faragher when no tangible employment action is taken an employer can raise an affirmative defense to liability or damages by establishing two prongs "a that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and b that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise" The Authors contend that careful analysis of the cases involving the EllerthFaragher affirmative defense evinces that satisfying both prongs can actually be as "easy as PIE" if the employer has a sufficient antiharassment policy it sufficiently implements that policy and it sufficiently enforces that policy Specifically a sufficient policy contains an adequate definition of the proscribed behavior assurances that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation and reasonable complaint procedures that provide accessible avenues of complaint and identify to whom harassment need be reported Implementation is sufficient if there is adequate dissemination of and training regarding the policy and employees are required to sign that they have read the policy understand it and agree to abide by it Enforcement is sufficient if the behavior complained of is properly investigated and the harassing behavior is promptly corrected This Article provides an indepth analysis of the three PIE componentshow they affect both prongs of the affirmative defense and how their sufficiency and interplay with each other can in a very real way not only shield a company from vicarious liability for sexual harassment by its supervisors but also prevent the underlying sexual harassment After analyzing the conditions under which courts have found each of these three PIE components sufficient the Authors offer practical solutions using a fictional company Noble Corporation to illustrate how the PIE model works

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