United States Court of Appeals, Eleventh Circuit
679 Fed.Appx. 851
February 9, 2017
Keywords: affirmative defense, discrimination, employment, harassment, reasonable care
Cooper brought suit against his former employer, CLP Corporation for alleged discriminatory harassment and termination based on his strabismus, a visual impairment. The district court granted summary judgment to CLP. Additionally, the Court of Appeals concluded that CLP was entitled to use an affirmative defense against the charge of harassment, because it had corrective measures in place and Cooper failed to utilize the corrective process for reporting harassment. Accordingly, the Court of Appeals affirmed the district court decision.
Facts of the Case
Orlando Cooper brought this action against his former employer, CLP Corporation for allegedly discriminating against him based on his strabismus, also known as “lazy eye”, in violation of the Americans with Disabilities Act (ADA). Cooper claimed he was harassed and eventually terminated because of his strabismus by the store manager, Spanada Holmes, and that Holmes used discriminatory phrases to describe him such as “cockeyed ass” or “lazy-eyed” in the work environment. Cooper complained about Holmes’ behavior to the district manager.
CLP has an anti-harassment policy in place that all employees are trained on during orientation. The policy strictly prohibits discrimination or harassment based on a disability, and retaliation against an employee who reports harassment. Employees are informed to which individuals they are to report instances of harassment; however, the district manager is not one of those individuals.
Cooper filed suit against CLP in district court alleging he has a disability, was subjected to a hostile work environment and harassed on the basis of disability, and was terminated due to disability. CLP asserted the Faragher/Ellerth affirmative defense against claims of hostile work environment, arguing that CLP “exercised reasonable care to prevent and correct promptly any harassing behavior,” and that Cooper “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” CLP presented the information that new employees receive during orientation regarding the procedure to report harassment.
Because Cooper failed to report the harassment to the appropriate supervisor, the district court found that he did not put CLP on notice of Holmes’ conduct, and CLP therefore was not vicariously liable for Holmes’ behavior, if Holmes’ behavior had been discriminatory. Additionally, however, the district court concluded that Cooper’s termination by Holmes was not based on his strabismus, but on his failure to report to work when he was called in.
Cooper appealed to the Eleventh Circuit Court of Appeals.
Issues of the Case
- Whether the Faragher-Ellerth affirmative defense was available to employer in response to employee’s claim.
- Whether the employer exercised reasonable care to prevent and correct any harassing behavior against employees.
- Whether the employer was entitled to assert the Faragher-Ellerth affirmative defense.
Arguments & Analysis
1. Whether the Faragher-Ellerth affirmative defense was available to employer in response to employee’s claim.
The Faragher-Ellerth affirmative defense is one that can be used against claims of harassment. Employers may use the affirmative defense if a) there was no tangible adverse employment action taken against the plaintiff, b) the employer exercised reasonable care to prevent and promptly correct any harassing behavior against an employee, and c) the employee failed to take advantage of preventative opportunities provided for by the employer.
In Faragher v. Boca Raton, Faragher, a lifeguard, brought action against her supervisors and the city under Title VII of the Civil Rights Act of 1964, stating her supervisors had created a hostile work environment by making lewd comments, and offensive touching. In the Supreme Court’s decision, they held that “an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by preponderance of the evidence.” In 1998, in Burlington Industries, Inc. v. Ellerth, the Supreme Court held that under Title VII, “an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor’s actions, but the employer may [apply] an affirmative defense.”
When the supervisor’s harassment does not involve an adverse tangible employment action, such as termination based on discrimination, an employer can avoid vicarious liability for a supervisor’s action through the use of the affirmative defense. Because Cooper failed to show up for work when called, he was terminated because of his actions rather than his alleged disability. Therefore, the Eleventh Circuit ruled that the Faragher-Ellerth defense is available to the employer in response to Cooper’s claim.
2. Whether the employer exercised reasonable care to prevent and correct any harassing behavior against employees.
An employer can meet the initial burden of exercising reasonable care by instituting and disseminating an anti-harassment policy. At the very least, employers must institute a procedure where employees may report harassment to someone other than the offending supervisor. CLP had an anti-harassment policy that prohibited discrimination and harassment, which employees were trained on during orientation and which was widely disseminated. Employees also were made aware that they are to report harassment to the Human Resources Director. Cooper admitted he was aware of the anti-harassment policy, as well as the procedure for reporting harassment, which he failed to follow. The Court of Appeals agreed with the district court and determined the employer exercised reasonable care to prevent and correct any harassing behavior against employees.
3. Whether the employer was entitled to assert the Faragher-Ellerth affirmative defense.
Asserting the Faragher-Ellerth affirmative defense requires that an employee unreasonably fail to use a complaint procedure provided by the employer. Cooper failed to report his harassment to the proper supervisor, therefore failing to properly put CLP on notice of the harassment. Due to Coopers’ improper reporting of the harassment, CLP was entitled to assert the Faragher-Ellerth affirmative defense.
The Eleventh Circuit Court of Appeals determined the district court did not err in granting summary judgment in favor of CLP, and affirmed the court’s decision with regards to the ADA claim of discrimination. CLP was allowed to use the Faragher/Ellerth affirmative defense, and the Court of Appeals agreed with the district court that CLP was not properly put on notice to be liable for Holmes’s actions.
Policy & Practice
An employer may use Faragher-Ellerth affirmative defense against harassment claims from employees if they took no tangible adverse employment action against the plaintiff, took reasonable care to prevent and correct any harassing behavior against employees, and the employee failed to utilize corrective measures.
- Full case, Cooper v. CLP Corp, 679 Fed.Appx. 851 (11th Cir. 2017),
- Faragher v. City of Boca Raton, 524 U.S. 775 (1998),
- Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998),
These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time. In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.