Fifth Circuit Extends Faragher/Ellerth Affirmative Defense to Whistleblower Cases

The Faragher/Ellerth defense, named for the two U.S. Supreme Court decisions from which it was derived, serves to defeat hostile work environment claims in certain circumstances. The defense negates employer liability for harassment claims when the employer demonstrates that it took reasonable steps to prevent or correct the alleged harassment, and that the plaintiff unreasonably failed to utilize the employer’s preventive policies (e.g., internal complaint processes). Although courts have applied the Faragher/Ellerth affirmative defense to hostile work environment claims based on Title VII of the Civil Rights Act, as amended, its application to other federal statutes has been less clear. Recently, however, the Fifth Circuit Court of Appeals recognized the defense in a hostile work environment claim brought under the Energy Reorganization Act (ERA), a federal whistleblower statute.

In Williams v. Administrative Review Board, six plaintiffs sued their employer, Mason & Hanger Corporation (Mason), alleging that they were harassed after they reported violations of federal safety regulations. After an evidentiary hearing, an Administrative Law Judge (ALJ) denied the plaintiffs’ claims, finding that Mason’s Faragher/Ellerth defense precluded their claims. On appeal, the Administrative Review Board (ARB) upheld the ALJ’s decision, but ruled that the ALJ had erred in considering the Faragher/Ellerth defense. The ARB reasoned that the Faragher/Ellerth defense did not apply to whistleblower claims because the defense related solely to sexual harassment claims (i.e., the type of claim asserted in the Faragher/Ellerth cases).

For the full story, please view the PDF.