Reexamining Reasonableness: Modernizing the "Ellerth/Faragher" Defense

Named after the two 1998 U.S. Supreme Court decisions that established it, the Ellerth/Faragher defense is an affirmative defense generally available to employers who would otherwise be held liable for Title VII claims of supervisor harassment. If the supervisor’s behavior does not involve an adverse employment action, the employer may avoid liability if it can demonstrate that: (1) the employer exercised reasonable care to prevent and promptly correct unlawful harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. As employers sought to implement measures that demonstrated reasonable care, sexual harassment training and anonymous phone hotlines emerged as common strategies to assert this affirmative defense. In the contemporary workplace, where digital communication reigns and remote working becomes the new norm, such mechanisms are both archaic and ineffective in the prevention and correction of sexual harassment. This Comment critically analyzes the federal judiciary’s low threshold for “reasonableness” under the Ellerth/Faragher defense, considering specifically interdisciplinary understandings of the dynamics that motivate sexual harassment and rapid advances in technology. In addressing the law’s outdated understanding ofreasonableness, the Comment proposes the federal judiciary should (1) reexamine what qualifies as reasonable in the #MeToo era, and (2) strongly consider arguments in favor of “reasonable” including more stringent standards of care for employers reflecting technological advancements. So long as the Ellerth/Faragher defense remains the law, it is incumbent upon the federal judiciary to seriously consider evidence demonstrating what is reasonable in the modern workplace. The goal of this Comment is to suggest a comprehensive interdisciplinary approach with real-world impact—to prevent sexual harassment, rather than to correct—which carries the added benefit of mitigating employer liability