A Virginia federal district court applied the "Faragher-Burlington Industries affirmative defense" established by the Supreme Court recently and found an employer wanting in the second element of the defense. In Corcoran v. Shoney's Colonial, Inc., the U.S. District Court found that while the employer exercised reasonable care to prevent and promptly correct sexually harassing behavior, the employee did not unreasonably fail to take advantage of any preventive or correction opportunities or to otherwise avoid harm.
Prevention Present
In its effort to prevent sexual harassment, Shoney's had an express policy prohibiting sexual harassment in the workplace that was posted in all Shoney's locations. After Corcoran complained about a supervisor's offending conduct, other supervisors took immediate action and steps to minimize any contact between Corcoran and the perpetrator. When the perpetrator was confronted with the results of the investigation, he resigned. Those facts, the court found, amounted to reasonable care to prevent and correct sexual harassment.
Employee Not Unreasonable
The supervisor had made isolated harassing remarks to Corcoran in June of 1994. Corcoran did not report the offensive conduct and nothing occurred for the next several months. In February of 1995, however, Corcoran complained to management after the harassment escalated to an egregious stage. Shoney's argued that Corcoran's complaint was unreasonably late, and therefore both elements of the affirmative defense were satisfied. The court disagreed and ruled that it was reasonable for Corcoran to fail to take action following the June 1994 remarks and wait until the February 1995 incident before taking action. On that basis, the court denied summary judgment on the sexual harassment claim.
This case illustrates the limited usefulness to employers of the Faragher-Burlington Industries affirmative defense in avoiding liability for claims of supervisory sexual harassment. An employer can meet the first prong of the defense by putting together a program to prevent and stop sexual harassment, but that cannot be a complete defense to the employee's claims.