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Employee Assistance Programs: Understand the Faragher/Ellerth Affirmative Defense

Posted by Daniel Feerst, BSW, MSW, LISW-CP (800) 626-4327 on

The Faragher/Ellerth Affirmative Defense is an argument used in court against lawsuits for employment complaints like sexual harassment. It can also be used as a defense against any other kind of lawsuit brought by an employee against an employer.

 How is your EAP reducing risk in innovative ways


Defending against harassment--if one is to have any chance of winning, especially in a jury trial--requires that the employer prove that it wanted to prevent and promptly correct harassment in the workplace, and the employee who is suing must have taken advantage of the employer's preventative or corrective measures.

The Faragher/Ellerth affirmative defense basically says this: "Hey Judge! We did everything we could to keep this problem from happening for which we are being sued, and here is all the evidence of how we took precautions, how we did everything the right way, including making available to the employee a means of getting his or her needs met so things would never have gotten to this point in court--but the employee didn't take advantage of our resources and solutions or offers of help. So please throw out this lawsuit because we really are not at fault."

Did you know that the real rationale for having an employee handbook is this defense doctrine, and not just good communication and reduced confusion.

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Some companies require the signing of a document that the employee was provided an employee handbook for good reason. Have you ever wondered why? This step can help protect the employer against lawsuits associated with everything from pregnancy discrimination to failure to promote; from inappropriate use of discipline to being discriminated against because of one's color, religion, ethnic background, sex, sexual orientation, and more. These things are standard paragraphs and mentions in employee handbooks -- or they should be these days.

Click to print this graphic that you above and build on it to market employee assistance programs, improve supervisor referrals, and convince management not to throw out the baby with the bath water --- your EAP has enormous risk reduction and intervention potential.

Click here for the EEOC document pertaining to the Faragher/Ellerth Affirmative Defense

The standard of liability set forth in court rooms is based upon two principles:

  • 1) an employer is responsible for the acts of its supervisors, and
  • 2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.


In order to accommodate these principles, the Court has held that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action. However, if it does not, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements:

  • A. The employer exercised reasonable care to prevent and correct promptly any harassing behavior, and
  • B. the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.


You do not need a vivid imagination to consider how EAPs fit into this doctrine--consulting, training, assessments, proper follow up after treatment, attracting disgruntled employees to the EAP, dealing with anger management issues, meeting with angry employees post-termination, making one's EAP a safe place to bring any personal problem.

PRINT: (Making your EAP visible required regular, relentless, non-stop, forever continuing EAP promotion that you distribute monthly. Not doing so leaves "risk on the table" -- send an EAP Newsletter monthly to the workforce.)

Not all so-call EAPs have the program structure or resource capacity to conform to this doctrine. Many do not have a financial or business rationale that even comes close. They are nothing more than hotlines.

I am not a doctor. But I can still discuss with you tips for being heart healthy, and likewise, I can also talk with you about legal issues that employers face so you can appreciate their importance and use your employee assistance program to help reduce risk of employment claims to your host employer.

By the way, most lawsuits are settled out of court because 60% of them are won by employees when a jury makes the determination of liability, and the awards are five times higher than out of court settlements.)

With that said, let's talk about growing your true core-tech EAP to make it more valuable, get paid more, help more employees, saving more lives, and preventing enormous lawsuits that cost millions.

While EAPs love counseling and one on one employee-client relationships for resolving personal problems and workplace struggles, don't ignore the real purpose of a comprehensive, core technology EAP. It's about protecting the work organization from risk associated with workforce behavior.

EAPs aren't instituted just they are a nice thing. The work world does operate in the "nice thing to do plane of reality" like you and I do when we pay it forward at a Starbucks. If there is not a business financial rationale, it doesn't happen. No EAP in this country was ever sold on anything but a financial cost-benefit rationale.

Employment practices liability is one huge area of risk EAPs don't know a lot about, and don't quite appreciate enough. If they did, they would see an explosive growth in EAPs along with rising salaries and program expansion from the tremendous obvious synergies that exist by partnering not with health insurance, but property casualty insurance carriers nationwide. Learn all about risk of lawsuits from this document I place on the WorkExcel.com server.

As you read this document, think! --> Where is the EAP opportunity? Think training, outreach, assessment follow up, education, awareness, promotion, and internal consulting.

Download his document from our Web server: 2015 Employee Legal Charge Trends Across the United States


These P-C insurers are the deep-pocketed big boys who sell among other things, EPL -- Employment Practices Liability Insurance, workers' comp, Director's and Officers Liability, and Property insurance among others.

There is a built-in rationale for EAPs doing training on many types of risk-associated behaviors experienced by employees and supervisors alike, along with participating internally on virtually any sort of policy committee associated with workforce behavior if that participation does not taint or interfere with the EAP's perception of safety and confidentiality.

EAPs can be absolutely integral to bolstering and fitting in with the Faragher/Ellerth Affirmative Defense

Can you see how? You can apply the following to many sorts of problems. EAPs are often the last resort when they are ready to sue. Have ever heard an employee client mention the words, "sue my employer." This is proof that you are key preventative link.

Employees have sued employers and won huge awards for lots of things. Sexual harassment is just one of them.

Thousands of lawsuits are racked up each year in the USA for offenses like discrimination, wrongful termination, wrongful discipline (big EAP safeguard possibilities here), abusive supervision, religious discrimination, discrimination against the disabled, an pregnancy accommodation. Problems like bullying, failure to promote, respect in the workplace, diversity awareness, conflict resolution, anger management, early stage intervention in substance abuse, are all EAP territory for reducing risk. Health insurance pays for health and mental health problems. Property casualty insurance pays for everything else. Who needs you more?

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