What must employers demonstrate to use the Ellerth/Faragher defense effectively?

To effectively use the Ellerth/Faragher defense, employers must demonstrate that they took reasonable care to prevent and correct harassment in the workplace. This defense, which originated from two landmark cases in the United States, provides a framework for employers to protect themselves against vicarious liability for harassment committed by their employees. The core idea is that if an employer has implemented appropriate measures to prevent harassment—such as training programs, established reporting procedures, and a clear anti-harassment policy—they can argue that they are not liable for the actions of a supervisory employee.

By showing they took reasonable steps, employers demonstrate they were proactive in creating a workplace free from harassment and that they provided employees with a mechanism to report and address any improper behavior, thereby minimizing risk and handling issues effectively when they arise.