Faragher/Ellerth defense used to defeat Oklahoma Anti-Discrimination Act claim

by McAfee & Taft

As a recent ruling by the U.S. Court of Appeals for the Tenth Circuit shows, the same employer defenses used to defeat Title VII discrimination claims can also be used to defeat claims under the Oklahoma Anti-Discrimination Act.

Factual background

In December 2008, Misty Tilghman began working as a secretary to Ron Kirby, an elected county commissioner in Comanche County, Oklahoma. At the time of her hiring, she acknowledged reading and understanding the employee handbook, which included a policy against sexual harassment. It instructed employees to report any incidents to their supervisor, anyone in their supervisory chain of command, any commissioner, the district attorney, or any assistant district attorney. The person receiving the report of harassment was responsible for promptly investigating the allegations and taking appropriate corrective action, if necessary.

Following Kirby’s resignation in February 2012, Tilghman obtained a new supervisor who began to fault her job performance, which included attendance and tardiness issues. In June 2012, and after being reminded again about her tardiness, Tilghman offered to quit. Her supervisor told her, “No, you don’t have to quit, but we need to improve some things.” That same day, Tilghman left for lunch and did not return to work.

Months later, Tilghman sued her former employer for a number of claims, including hostile work environment under the Oklahoma Anti-Discrimination Act. In her lawsuit, she alleged she had been sexually harassed by Kirby from the very beginning of her employment until his resignation. After the federal district court ruled in favor of the employer, Tilghman appealed to the Tenth Circuit.

The court’s legal analysis

The Tenth Circuit analyzed the OADA claim in the same way it would analyze claims brought under Title VII of the Civil Rights Act of 1964. The employer was successful in obtaining summary judgment on the hostile work environment claim because it could establish the Faragher/Ellerth defense. Even though Kirby, the harasser, was Tilghman’s supervisor, the employer took no tangible employment action against Tilghman. Thus, so long as the employer could establish the Faragher/Ellerth defense, it could escape liability on Tilghman’s hostile work environment claim under the OADA, just as with a Title VII claim.

The employer was able to prove the two elements of the Faragher/Ellerth defense: (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) that Tilghman unreasonably failed to take advantage of those preventative or corrective opportunities. The employer had a policy in place to prevent and promptly correct workplace harassment. It required employees to immediately report any incidents. Knowing that the supervisor could be the alleged offender, the policy instructed employees to report to others in the chain of command if necessary. The policy required the person receiving the complaint to promptly investigate the matter and take appropriate remedial action. Tilghman unreasonably failed to take advantage of this policy. She never reported Kirby’s conduct. Although Kirby was her supervisor, the policy provided a litany of others to whom she could have made a report. Moreover, there was no evidence to suggest that Tilghman had made prior complaints that had been ignored, or that Tilghman’s job was threatened by Kirby if she were to report. The Tenth Circuit therefore affirmed summary judgment for the employer because it successfully established the Faragher/Ellerth defense.

Takeaway for employers

The OADA prohibits, among other things, sexual harassment in the workplace. This law covers Oklahoma employers with at least one employee or those employers who contract with the state government. The Tenth Circuit will analyze claims brought under the OADA in the same way it analyzes claims brought pursuant to Title VII. And as this case makes clear, the same defenses used to defeat Title VII liability can be used to defeat liability under the OADA. It is incredibly important for employers to be able to establish the Faragher/Ellerth defense to harassment and hostile work environment claims. Employers should ensure their policies are read, understood and acknowledged by employees. Be sure to document the employee’s consent to these policies. The policy should require prompt reporting of any incidents of harassment and allow reports to be made to a variety of managerial staff. In this case, the employee’s alleged harasser was her supervisor. It was crucial that the employee had other individuals to whom she could make a report besides her supervisor. The policy should also require prompt investigation of all complaints and call for corrective action to be taken, if necessary. The managerial staff to whom reports will be made should also receive regular training about their responsibilities.

As always, do not hesitate to contact an employment attorney if you have questions about your employment policies or obligations under the OADA.

Tilghman v. Kirby, Case No. 16-6010, D.C. No. 5:13-CV-00073-D (10th Cir. 2016).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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