Monday, May 10, 2010
Court Emphasizes that Evidence of Training a Must
The Middle District Court of Tennessee rejected the employer's attempt to use the Faragher/Ellerth affirmative defense in a sexual harassment case, even though the employer had an anti-harassment policy in place, the policy was disseminated to all employees, and the Plaintiff admittedly received the policy and was instructed to read it. The Plaintiff stated that she did not follow the instructions to read the policy and had no understanding of the complaint procedure. After noting that there was no evidence that management or the employees (including Plaintiff) received any training on the sexual harassment policy and/or the complaint procedure, the Court concluded that the employer failed to demonstrate reasonable care to prevent and promptly correct any sexually harassing behavior and therefore was not entitled to invoke the affirmative defense. This case illustrates the importance of training and the growing trend of the courts to require it before allowing employers to avail themselves of the Faragher/Ellerth defense.