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68 Lab. L.J. 143 (2017)
The Faragher Legacy: Still Going Strong after Twenty Years of Attacks and Counter-Measures

handle is hein.journals/labljo68 and id is 151 raw text is: The Faragher Legacy: Still Going Strong After Twenty Years of Attacks and Counter- Measures By Allan H. Weitzman and Marissa A. Mastroianni ALLAN H. WEITZMAN is a Partner in Proskauer's Labor & Employment Law Department and head of the Labor and Employment team in Proskauer' s Boca Raton Office. Allan has been certified by The Florida Bar as an expert in Labor and Employment law. After Allan's graduation from Cornell University's School of Industrial Relations and the Cornell Law School, Allan spent his entire 44-plus year career at Pros- kauer. Among this many awards, Allan has been named three times by Best Lawyers as Lawyer of the Year and has been inducted into the Human Resource Executive/Law- dragon Hatt of Fame for Leading Corporate Employment Lawyers. Allan is retiring from the practice of law this Fall and this article will be his last as a practicing attorney. In retirement, Allan will be a part-time arbitra- tor and mediator for cases exclusively within his area of expertise. MARISSAA. MASTROIANNI is an associ- ate attorney in the Labor and Employment Department of Proskauer Rose LLP. She assists clients in a broad spectrum of em- ployment litigation matters before federal and state courts. The matters she handles include discrimination, wrongful discharge, breach of employment contracts, and retaliation actions. Marissa also counsels clients on various employment laws and related issues. FALL 2016 In 1992, Beth Ann Faragher, a former lifeguard on the beaches of Boca Raton, Florida, filed a federal complaint for sexual harassment against her employer, the City of Boca Raton (the City), and two of her immediate supervisors.I Because she had resigned and did not allege a constructive discharge, she had no statutory out-of-pocket economic damages; and, at the time of the conduct at issue, Title VII did not provide for compensatory or punitive damages. Nevertheless, a lifeguard's courageous decision to sue on principle led to the landmark United States Supreme Court decision in Faragher v. City of Boca Raton.2 Therein, to balance - on the one hand - an employer's obligation to reasonably prevent sexual harassment in the workplace and the need to provide employers some incentive to fulfill that duty, with - on the other hand - an employee's duty to mitigate harm, the Court created an affirmative defense to sexual harassment claims.3 The Court simultaneously made the defense unavailable to employers who failed to take appropriate steps to prevent and correct sexual harassment and recovery unavailable to employees who failed to reasonably take advantage of those steps.4 During the past two decades, a significant body of case law applying the af- firmative defense has evolved. Employees and former employees who become plaintiffs (employees or plaintiffs) have forged lines of attack in their efforts to render the affirmative defense inapplicable when employers fail to take ap- propriate preventative and corrective measures. Over time, general patterns of court holdings have made plaintiffs' successes and employers' failures somewhat predictable. Therefore, the attorneys for plaintiffs and employers alike can benefit from lessons learned based on the jurisprudence created over the interpretation of the parameters of the affirmative defense. A full understanding of Faragher and its progeny requires a brief discussion of the factual circumstances behind this landmark decision. Beth Ann Faragher was one of the few female lifeguards who worked for the City from 1985 to 1990.' Dur- ing that time, Faragher's two supervisors repeatedly touched the female lifeguards inappropriately, made crudely demeaning references about women generally, and expressed the desire to engage in sex with them.' The fact that she was the victim D2017 BY ALLAN H. WEITZMAN AND MARISSA A. MASTROIANNI 143

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