Faragher-Ellerth affirmative defense in Iowa

2025Cf., e.g., Fenceroy v. Gelita USA, Inc., 908 N.W.2d 235, 240, 242 (Iowa 2018) (concluding that the defendant raised the Faragher-Ellerth affirmative defense without specifically naming it).

2021The city thus asserted what is known as a Faragher-Ellerth affirmative defense.2 This “two-part defense requires employers to show reasonable care was exercised to ‘prevent and correct promptly any . . . harassing behavior’ and to further show the claimant employee ‘unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.’” Fenceroy v. Gelita USA., Inc., 908 N.W.2d 235, 242 (Iowa 2018) (quoting Farmland Foods, Inc. v. Dubuque Human Rights Comm’n, 672 N.W.2d 733 , 744 n.2 (Iowa 2003) (adopting the defense)).

2021In 2That term is based upon United States Supreme Court cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). 6 Fenceroy, the supreme court addressed the question of privilege, holding “that an employer who relies on a presuit investigation to support a Faragher-Ellerth affirmative defense waives attorney–client privilege when the investigation is conducted by an attorney.” Id.

2021In 2That term is based upon United States Supreme Court cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). 6 Fenceroy, the supreme court addressed the question of privilege, holding “that an employer who relies on a presuit investigation to support a Faragher-Ellerth affirmative defense waives attorney–client privilege when the investigation is conducted by an attorney.” Id.

2021In 2That term is based upon United States Supreme Court cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). 6 Fenceroy, the supreme court addressed the question of privilege, holding “that an employer who relies on a presuit investigation to support a Faragher-Ellerth affirmative defense waives attorney–client privilege when the investigation is conducted by an attorney.” Id.

2017The employer defending a vicarious liability claim may assert the Faragher-Ellerth affirmative defense by showing it: (1) “exercised reasonable care to prevent and correct promptly any ... harassing behavior,” and (2) “that the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Id. at 744 n.2 (quoting Faragher, 524 U.S. at 807 , 118 S.Ct. at 2293 ).

2021The city thus asserted what is known as a Faragher-Ellerth affirmative defense.2 This “two-part defense requires employers to show reasonable care was exercised to ‘prevent and correct promptly any . . . harassing behavior’ and to further show the claimant employee ‘unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.’” Fenceroy v. Gelita USA., Inc., 908 N.W.2d 235, 242 (Iowa 2018) (quoting Farmland Foods, Inc. v. Dubuque Human Rights Comm’n, 672 N.W.2d 733 , 744 n.2 (Iowa 2003) (adopting the defense)).

2021Rheeder requested “[a] complete copy of the investigative report of Frances Haas regarding Valerie Rheeder’s complaint of sexual harassment [and] retaliation.” And the district court ruled that Rheeder was entitled to “the full and complete copy of Ms. Haas’ report.” After finding that the city had not proven the document was privileged and had waived any privilege by its plan to use the investigation and report to support its affirmative defense, the court concluded: “If [the city] intend[s] to use the report to support [its] affirmative defense, [Rheeder] may not be kept from disputing all o

2019To establish a hostile-work-environment claim under the ICRA, a plaintiff must show: “(1) he or she belongs to a protected group; (2) he or she was subjected to unwelcome harassment; (3) the harassment was based on a protected characteristic; and (4) the harassment affected a term, condition, or privilege of employment.” Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 746 (Iowa 2006) (quoting Farmland Foods, Inc. v. Dubuque Human Rights Comm’n, 672 N.W.2d 733, 744 (Iowa 2003)). 6 An employer may be entitled to the Faragher-Ellerth affirmative defense to claims of vicarious liability for harassment b

2017Beckford v. Dep’t of Corr., 605 F.3d 951, 960-61 (11th Cir. 2010) (finding a refusal to give a Faragher defense instruction proper when plaintiff did not argue vicarious liability). 30 As a result, it is important to note that under a claim based on negligence, the second prong of the Faragher-Ellerth defense, namely, that the employer may prove the plaintiff failed to avail herself of an employer’s internal remedy, has no application.

2017Ellerth, 524 U.S. at 764 , 118 S.Ct. at 2270 (adopting affirmative defense “in order to accommodate the agency principle of vicarious liability for harm caused by misuse of supervisory authority” (emphasis added)); accord Faragher, 524 U.S. at 807, 118 S.Ct. at 2292 ; see also Johnson v. Shinseki, 811 F.Supp.2d 336 , 348 n.2 (D.D.C. 2011) (holding because the court applied the negligence standard, “the Far-agher defense is inapplicable”); Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001) (stating defense did not apply to negligence standard); Lintz v. Am.

2017Ellerth, 524 U.S. at 764 , 118 S.Ct. at 2270 (adopting affirmative defense “in order to accommodate the agency principle of vicarious liability for harm caused by misuse of supervisory authority” (emphasis added)); accord Faragher, 524 U.S. at 807, 118 S.Ct. at 2292 ; see also Johnson v. Shinseki, 811 F.Supp.2d 336 , 348 n.2 (D.D.C. 2011) (holding because the court applied the negligence standard, “the Far-agher defense is inapplicable”); Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001) (stating defense did not apply to negligence standard); Lintz v. Am.

2003The harassment addressed in the elements of the claim refers, of course, to hostile-work-environment harassment that occurs “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ ... ‘sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment.’ ” Harris, 510 U.S. at 21 , 114 S.Ct. at 370 , 126 L.Ed.2d at 301 (citation omitted).

2003The harassment addressed in the elements of the claim refers, of course, to hostile-work-environment harassment that occurs “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ ... ‘sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment.’ ” Harris, 510 U.S. at 21 , 114 S.Ct. at 370 , 126 L.Ed.2d at 301 (citation omitted).