The decision in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.ed.2d 633 (1998), set up a framework for employers to avoid liability. An employer can avoid liability for harassment of an employee if the employer has a robust system in place for reporting on-the-job harassment. Once such a reporting system is in place, an employer will have an affirmative defense to sexual harassment if: 1) the employer exercises reasonable care to prevent sexual harassment, and 2) if the plaintiff employee unreasonably fails to take advantage of that reporting system. One can fuss about whether a reporting system works as well for victims of sexual harassment as it might for other sorts of harassment. Women find it harder to report abuse than victims of other sorts of abuse. But, even so, the affirmative defense exists.

Prompt, Remedial Action

In Rivas v. Estech Systems, Inc., No. 06-20-00058-CV, 2021 WL 2231262 (Tex.App. Texarkana 6/3/2021), the female plaintiff sued alleging her supervisor had placed a camera beneath her desk aimed at her seat. The employer fired the supervisor within minutes of Ms. Rivas’ complaint. The employee then sued for sexual harassment. The trial judge granted summary judgment.

Under the decision in Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999), the employer would be absolved of liability because it took prompt, remedial action in response to the complaint. Judge Edith Jones, in an over-wrought opinion, found that prompt remedial action would prevent liability on the part of the employer. Judge Jones reached that result, so as to square the Ellerth decision with the decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). The Meritor decision held that under Title VII, an employer is never “automatically” liable for harassment by a supervisor who creates a hostile working environment. Indest, at p. 267. Judge Jones argued that even though Ellerth modified Title VII in important respects, it did not affect the decision in Meritor Savings.

Only One Judge

The Texarkana court did not agree. Judge Morriss, writing for the majority, noted that Judge Jones was alone in her belief that the Ellerth case did not affect the decision in Meritor Savings. One Judge on the panel with Judge Jones strongly disagreed with her on the continued vitality of Meritor Savings. The other judge on the panel with Judge Jones concurred in the result only and did not join with either opinion.

And, Judge Morriss on the Texarkana Court of Appeals simply noted that allowing an exception for instances when an employer takes prompt, remedial action undermines the holding in Ellerth. It adds an exception that does not otherwise exist in that decision. The Judge is saying it simply contravenes the law of agency to craft an exception for times when the employer takes prompt action. That prompt action will still inure to the benefit of the employer. A plaintiff’s damages will be considerably reduced because the employer took that prompt, remedial action. But, the supervisor is still the supervisor.

See the decision in Rivas here.