The U.S. Supreme Court’s Faragher and Ellerth decisions imposed vicarious liability on employers for sexual harassment engaged in by supervisors. This means that in most cases, the employer is liable for the harassment whether or not it knew it was occurring, and whether or not it acted to stop the conduct once notified. The Court allowed employers a limited defense to supervisor harassment claims in situations where the company had in place an effective system for investigating and handling such situations, and where the employee unreasonably failed to take advantage of the system.

A recent unpublished decision from the Eleventh Circuit Court of Appeals shows how employers can use the Faragher/Ellereth defense to avoid liability for supervisor sexual and other harassment claims. In Swindle v. Jefferson Co. Comm., the plaintiff alleged that her supervisor groped and otherwise harassed her. She filed an internal harassment complaint two years after she claimed the harassment began. Despite the delay in reporting, the county immediately began an investigation of the harassment claims, and promptly fired the supervisor after concluding its review. Shortly after the termination, the plaintiff sued the county, claiming that it was strictly liable for the harassing conduct.

The Eleventh Circuit affirmed dismissal of the claim on summary judgment. The court rejected the plaintiff’s claim that she could not reasonably report the harassment at an earlier date due to fear of retaliation. The Eleventh Circuit first determined that the county had in place a proper anti-harassment policy. The employer’s quick reaction to the complaint and its termination of the supervisor demonstrated the policy’s effectiveness. A generalized fear of retaliation absent specific evidence of threats or similar tangible conduct, is not enough to excuse a plaintiff from reporting the harassing conduct on a timely basis.

Without these policies in place, the county could have been found liable for the supervisor’s conduct despite its lack of knowledge of the circumstances. This case illustrates the importance of employers maintaining a strong and effective harassment policy, training employees with regard to the policy, and taking prompt, effective remedial steps once a complaint is received.