Employment Law (Affirmative Defense to Vicarious Liability‪)‬

Scope of Faragher-Ellerth affirmative defense to vicarious liability not defined by employer's own sexual-harassment policy--Chaloult v. Interstate Brands Corp., 540 F.3d 64 (1st Cir. 2008) Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee on the basis of sex. (1) In non-tangible employment actions, an employer is vicariously liable for a supervisor's unlawful sexual harassment unless the employer can establish the Faragher-Ellerth affirmative defense: that it acted reasonably to prevent and correct harassment and that the employee did not act reasonably to avoid harm. (2) In Chaloult v. Interstate Brands Corp., (3) the United States Court of Appeals for the First Circuit considered whether a lateral supervisor's knowledge of sexual harassment is vicariously attributable to an employer when the employer's sexual-harassment policy requires all supervisors to report any known misconduct. (4) The court refused to extend Title VII liability to an employer simply because it voluntarily adopted a sexual-harassment policy requiring all supervisors to report sexual harassment. (5)