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15-Jul-2017 04:22

an employer could no longer rely on the absence of these circumstances to defend a hostile environment sexual harassment claim based on the actions of a supervisor or manager.

The employer is now answerable even where it has no actual or constructive knowledge of the harassing conduct.

They did not alter the authority delineating what constitutes hostile environment sexual harassment.

The defense that certain egregious conduct does not rise to the level of creating a hostile environment has not changed.

The court said it was up to a jury to determine whether the harassment was sufficiently severe and pervasive prior to the rape that the plaintiff should have reported it and thereby taken steps to prevent it.

The Fifth Circuit took a somewhat different approach in Cir.

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Hostile environment sexual harassment can be the result of conduct such as "[un]welcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature." EEOC Guidelines at .11(a) Before 88 F.3d 255,261 (4th Cir. An employers could also be held liable on a negligence theory where it had .

With these defenses unavailable employers and their counsel will have to concentrate on the defenses that remain The Federal Appellate Court for the Fifth Circuit provided an example of how the affirmative defense may be applied by a court in Cir. In that case the school district had responded promptly to an anonymous letter accusing a school principal of sexually offensive conduct by conducting a thorough investigation. Scrivner had stated that the principal did not engage in the offending conduct.

Further she did not complain of any conduct of the principal towards her. The appellate court affirmed the summary judgement entered by the trial court in favor of the school district. Scrivner failed to avail herself of the opportunity to inform the school district of the principals conduct during the first investigation, in fact misleading the investigators. Scrivners contention that she mislead the investigators because she was intimidated by the principal.

In ruling for the employer the court emphasized the duty of a plaintiff to mitigate damages by promptly invoking the employers complaint procedure.

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The court reasoned that prompt reporting may prevent the situation from intensifying and thereby permit redress before a more damaging hostile environment is created.

First, it must be borne in mind that apply only where the conduct involved is that of a supervisor or one with successively higher authority over the complaining employee.

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