In cases of workplace discrimination, the Affirmative Defense allows employers to defend against liability by demonstrating proactive efforts to prevent and address discriminatory behaviors. This defense framework, established by the Supreme Court in the Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth decisions, applies when an employer can show they have taken “reasonable care” to prevent and correct discriminatory practices and that the employee unreasonably failed to take advantage of these preventive or corrective opportunities. 

Key components of a successful Affirmative Defense include a clearly communicated anti-discrimination policy, accessible complaint procedures, and regular, effective training for both employees and management on recognizing and handling discrimination. By having these measures in place, an organization can demonstrate its commitment to maintaining a discrimination-free workplace, potentially reducing both the likelihood of claims and liability in discrimination cases.

Employers who establish robust training programs, responsive complaint processes, and prompt investigative actions demonstrate the reasonable care needed to satisfy the defense’s requirements. This defense has proven effective in minimizing EEOC claims and in some cases, completely mitigating liability, provided the employer can show thorough documentation of its policies and responses. Ultimately, the Affirmative Defense emphasizes the need for a proactive, supportive environment where employees feel empowered to report discrimination, thereby helping to reduce legal exposure for employers.

For assistance in reviewing your current processes or to explore how empathiHR can assist your company in mitigating its risks to claims of harassment & discrimination, contact 866-240-6618 or hello@empathihr.com