A review of sexual harassment case law was presented at the 2007 Labor and Employment Roundtable at the Cornell University School of Hotel Administration. The foremost lesson is that employers should take steps to prevent harassment, but failing that, an employer should maintain and follow a strong policy on sexual harassment and immediately make an effective response to a complaint.
The court noted that the second prong of the Ellerth/Faragher defense “does not apply here.” Id. at 192. The court also noted that “it is thus unclear how the [Ellerth]/Faragher defense, on its own terms, would apply here” because the factual scenario of those cases are distinct from those in Moore. Id. at 193. The court may have been penalizing Sam's Club because of the relatively minor punishment that the company meted out to a supervisor who raped an employee. If so, the case is even more problematic because other courts could follow the stated rationale—that employers cannot prevail when the employee reports—even when the employer provided the utmost care and gave out appropriate discipline.
6.
164 F.3d 258 (5th Cir. 1999).
7.
Id. at 267.
8.
Reports are considered defective because they are either untimely or reported to the wrong party. A defective report, according to numerous courts, indicates an unreasonable employee response. See infra notes 145, 146, and 149.
9.
It must be noted that in each of these cases the employer responded with reasonable care according to the court.
10.
See, e.g., Hetreed, 1999 U.S. Dist. LEXIS 7219, at *3.
11.
No. 97-3670-CIV-UNGARO-BENAGES, 1999 U.S. Dist. LEXIS 10082 (S.D. Fla. June 2, 1999).
12.
No. 3:94-CV-1464-D, 1999 U.S. Dist. LEXIS 9344 (N.D. Tex. May 24, 1999).
13.
42 F. Supp. 2d 1254 (E.D. Okla. 1999). While a delay may be unreasonable as a matter of law to some courts, others have denied summary judgment motions so that a jury could decide if the plaintiffs' delays were reasonable. See Watts v. Kroger Co., 170 F.3d 505, at 507-08 & n.1, 510 (5th Cir. 1999) (noting that reasonableness of plaintiff's one-and-a-half month delay was a question for the jury); Fall v. Indiana Univ. Bd. of Trs., 12 F. Supp. 2d 870, 884 (N.D. Ind. 1998) (noting plaintiff's three month delay).
14.
No. 98-3851, U.S. Dist. LEXIS 7560 (E.D. Pa. May 24, 1999).
15.
36 F. Supp. 2d 1354 (S.D. Fla. 1999).
16.
Sherwyn, D., M. Heise, and Z. Eigen.2001. Don't train your employees and cancel your 1-800 discrimination hot-line: An empirical examination and correction of the flaws in the affirmative action defense to sexual harassment. Fordham Law Review69 (4): 1265-1304.
