Third Circuit Narrows Ellerth-Faragher Affirmative Defense In Hostile Work Environment Cases

The Third Circuit Court of Appeals, in O'Brien v. The Middle East Forum, et al., No. 2102646 (3d Cir. Jan. 5, 2023), narrowed the Ellerth-Faragher affirmative defense in hostile work environment cases. The Third Circuit held that an employer cannot raise this affirmative defense if the harasser functions as the employer's "proxy" or "alter ego." Instead, an employer is strictly liable for harassment perpetrated by its proxy or alter ego.

In O'Brien, a female employee alleged that a high-ranking male colleague sexually harassed her. At trial, the judge instructed the jury that the employer could not be liable if it (1) exercised reasonable care to prevent the harassment, and (2) the plaintiff unreasonably failed to take advantage of any corrective opportunities provided by the employer. This is known as the Ellerth-Faragher defense. It is raised as a defense in harassment cases when the plaintiff suffers no tangible adverse employment action, e.g., termination or