Update Faragher-Ellerth Policies

By Bill Wright

An employer recently found itself in a Catch-22 over treatment allegedly suffered by a transgender employee.  The employee claims that she suffered harassment at the hands of her employer by being restricted in the use of restrooms, among several other claims.  As relevant here, the employer raised the Faragher-Ellerth defense that the employee had failed to bring the alleged harassment to the employer’s attention.  The court noted however that the employer only had a standard sex harassment policy and it did not explicitly apply to transgender issues.  Because the cases the employer had cited in support of its defense required a specific policy calling for reports of harassment, the court denied the employer’s motion for summary judgment on its defense.

Although we have been focused on the debate concerning whether discrimination based on a person’s transgender status is sex discrimination, it may be time to review our workplace policies to be sure that any complaint of harassment is reported in a timely manner to Human Resources.  And if your current policy prohibits “sexual” harassment without also prohibiting all other forms of unlawful harassment, then you REALLY need a policy overhaul.  Tudor v. SE Okla. State Univ., No. 5:15-cv-00324-C (W.D. OK October 26, 2017).