The application of Affirmative Defense differs in harassment and discrimination cases primarily in how courts assess the employer’s preventive and corrective measures and the nature of the employee’s response to these measures. In harassment cases, particularly those involving a hostile work environment or peer harassment, the Affirmative Defense allows employers to avoid liability if they can demonstrate that (1) they exercised reasonable care to prevent and correct harassment, typically by establishing a robust anti-harassment policy and complaint mechanism, and (2) the employee unreasonably failed to use these resources. This defense stems from the Faragher and Ellerth decisions and is generally only applicable in cases of non-supervisory harassment, as employers are typically held directly liable for supervisory harassment due to the authority dynamic.

In contrast, Affirmative Defense in discrimination cases—especially those involving disparate treatment or systemic discrimination—faces more stringent limitations. While employers can still argue they took reasonable preventive measures, such as implementing anti-discrimination policies and training, courts are less likely to apply Affirmative Defense when discrimination arises from policies, decisions, or practices ingrained within the organizational structure, as these often involve decision-making by higher management or embedded biases. Therefore, in discrimination cases, the defense is often more effective in instances of isolated incidents or peer-to-peer discrimination than in cases of top-down practices that lead to disparate impacts.

This distinction reflects the courts’ view that harassment and discrimination, though related, affect workplace dynamics differently, often with discrimination being more systemic and less mitigable by individual actions. Employers seeking to use Affirmative Defense in both contexts must document comprehensive policies, regular training, and effective complaint handling to establish a proactive approach.

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