Flirting With the Law: An Analysis of the \u3ci\u3eEllerth/Faragher\u3c/i\u3e Circuit Split and a Prediction of the Seventh Circuit’s Stance

This Comment critically analyzes the split in the circuits over the second prong of the Ellerth/Faragher defense. Further, this Comment predicts how the Seventh Circuit will rule on this split. The Ellerth/Faragher defense is an affirmative defense available to employers who would otherwise be held liable for their supervisors’ harassing acts in hostile work environment situations. There are two prongs to the defense: (1) “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and (2) “the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” Some courts drop the second prong of the defense in single-incident cases of harassment, arguing that the affirmative defense is fact specific, impermissibly imposes strict liability in single-incident cases, and is unfair to employers. This Comment suggests that the Seventh Circuit will affirmatively apply both prongs of the defense in all situations based on its adherence to precedent, trends in the lower courts, and its rationale in another recent circuit split. Further, this Comment argues that the application of both prongs of the defense is the correct standard regardless of the length of time of the harassment