Attorneys who need a quick refresher on the nuances of the Ellerth-Faragher affirmative defense in supervisor harassment cases should spend some time with last week’s decision by the 8th Circuit in Crawford v. BNSF Railway Co.

Five plaintiffs (four men and one woman) alleged that their male supervisor subjected them to frequent sexual and racial harassment. BNSF did not directly dispute the allegations, but sought summary judgment on the basis of Ellerth-Faragher, claiming that plaintiffs did not report the supervisor’s conduct in a timely manner, and that it responded promptly and effectively once it was reported. The district court granted summary judgment to BNSF, and the 8th Circuit affirmed.

Now for the refresher:

• An employer is vicariously liable for a supervisor’s harassment of an employee unless it can establish the Ellerth-Faragher affirmative defense. The defense is available only when the employer has taken no tangible employment action against the employee.

• To establish the defense, the employer must show two things: (a) that it exercised reasonable care to prevent and promptly correct any harassing behavior, and (b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

• As to the first element: An employer’s distribution of an antiharassment policy provides “compelling” proof that it exercised reasonable care. In assessing whether an employer exercised reasonable care, its notice of the harassment is of “paramount importance.” Where there is a published policy providing a policy for reporting harassment, an employee must have invoked the policy to establish actual notice. Moreover, the Court will afford an employer “an appropriate degree of deference to business judgment” where it conducted a reasonable investigation in good faith. (The fact that plaintiff wanted a harsher response does not make an otherwise valid policy ineffective.)

• As to the second element: Establishing that an employee failed to avail herself of a proper complaint procedure normally suffices to satisfy the employer’s burden under the second element of the defense. Only a “truly credible” threat of retaliation may excuse an employee’s delay in reporting harassment.

That concludes our refresher for today. Go forth and affirmatively defend!