CA1: affirmative defenses to sexual harassment discussed

Chaloult v. Interstate Brands, No. 07-2694.  This case involves the affirmative defense that an putatively vicariously liable employer may assert in a sexual harassment case under Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).  Essentially, employers can argue that “its own actions to prevent and correct harassment were reasonable and that the employee's actions in seeking to avoid harm were not reasonable.”  This case comes down to whether the employer “failed to take reasonable care to eliminate harassment when it might occur.”  In this case, it seems, they did.  Of note is the fact that both the harasser and the harassee both had the title of “supervisor.” 

I find it a little interesting that the First says that the Supreme Court made a “policy” judgment in their cases.  Now, we all know that courts entertain and accept policy arguments all the time.  However, usually it is considered bad form to tell the court that that is what you are doing.  And, of course, if you lose, many clients like it if you tell people that the court made a “policy” judgment as opposed to a “law judgment.”

Anyway, Lipez dissents saying that the majority got it all wrong.  If you litigate these cases, you need to take note (or better yet, have already read this case).