Skip to content
If You Don't Win, You Don't Pay

What if I don’t report discrimination to my employer?

By: Virtus Law Group, Birmingham Alabama.


The Faragher-Ellerth defense is an affirmative defense used by employers to avoid liability from discrimination claims brought against them under Title VII of the Civil Rights Act of 1964. This defense was the result of two Supreme Court case decisions: Farther v. City of Boca Raton (1998) and Burlington Industries v. Ellerth (1998). The Faragher-Ellerth defense applies most commonly to harassment and hostile work environment claims.

This defense allows employers to avoid vicarious liability for its employees under certain circumstances. Essentially, the defense requires an employer to take measures to prevent harassment, victims of harassment must report the behavior according to company policy, and employers then have to take measures to correct the behavior. The Supreme Court has held that employers have to give all employees a written anti-discrimination policy as a preventative measure. These policies outline company reporting procedures, including to whom the harassment should be reported. However, the elements of this defense vary depending on the position of the harassing employee.

An employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment. An employer is negligent when the harassing employee is the victim’s co-worker, the victim reported the harassing behavior according to the company’s anti-harassment policy, and the employer failed to take steps to prevent and correct the behavior.

On the other hand, an employer can be held directly liable for discrimination when the harassing employee is the victim’s supervisor. A supervisor is someone with the direct power to make tangible employment decisions (i.e. hire, fire, demote, reassign, etc.). The only way for an employer to escape liability for its supervisor employee’s harassment is if the supervisor has not taken any tangible employment action against the victim.

The Faragher-Ellerth defense will not apply when an employer knew or should have known the harassing behavior was taking place. Failing to report workplace discrimination according to company policy can allow employers the opportunity to assert the Faragher-Ellerth defense. If you have been discriminated against in the workplace, call one of our experienced attorneys today for a free consultation to discuss your next steps.


Founded in Birmingham, Alabama Virtus Law Group is a Personal Injury and Labor and Employment firm serving the people of Alabama.



Back To Top