TLP Announcements

Missouri Employers May Lose The Faragher-Ellerth
Affirmative Defense Based on Inadequate Background
Checks in the Hiring Process

On March 24, 2009, in Herndon v. City of Manchester, the Missouri Court of Appeals issued a significant decision which negatively impacts the ability of a Company to invoke the Faragher-Ellerth affirmative defense in sexual harassment cases.

The Faragher-Ellerth affirmative defense allows an employer to avoid vicarious liability resulting from sexual harassment perpetrated by a supervisory employee when:

1. the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and

2. the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

As outlined below, the Missouri Court of Appeals has significantly raised the bar with respect to a Company’s ability to establish that it used reasonable care to prevent harassment.

In Herndon, the Plaintiff brought an action against the City of Manchester, alleging the City failed to take reasonable steps to prevent sexual harassment by her supervisor, Sergeant Willie Epps. The Court ultimately found the City of Manchester was not entitled to summary judgment based on the Faragher-Ellerth affirmative defense, even though the City promptly investigated Plaintiff’s allegations and ultimately terminated Epps, because the City failed to uncover an act of sexual misconduct committed by Epps over fifteen years prior to the date of his hire. The City did not learn of this act of misconduct during the hiring process because, even though the City had performed a background check, Epps’ former employer provided only identifying information and employment dates but failed to disclose its knowledge regarding Epps’ past sexual misconduct.

The Court held a jury could find the City acted unreasonably by not requesting additional background information from the former employer, and its failure to do so formed the basis, in part, for the Court’s reversal of summary judgment in favor of the employer. The Court also found the City had failed to properly investigate alleged harassment reported by a citizen whom Epps had encountered while on duty (even though the citizen and City appeared to have resolved that complaint).

Herndon underscores the importance of having various tools in place to allow an Employer to successfully utilize the Faragher-Ellerth affirmative defense. For example, an Employer must continue to maintain and communicate a policy which enunciates the Employer’s sexual harassment prohibition and a reporting vehicle which provides for remedial action, where appropriate. Herndon also underscores the importance of thorough investigations -- even where the complaining party is not threatening further action. Finally, and perhaps the biggest lesson to be drawn from the Herndon decision, an Employer may now be obligated to make follow-up inquiries to employment reference responses that appear incomplete.

The Lowenbaum Partnership is confident that its clientele can overcome the hurdles of Herndon by implementing cost effective and straightforward safeguards. To that end, please do not hesitate to contact an attorney from The Lowenbaum Partnership.

This E-Alert is intended as in informal summary of certain recent legislation, cases, rulings and other developments. This E-Alert does not constitute legal advice or a legal opinion and is not an adequate substitute for advice of counsel. This E-Alert is not intended to nor does it create an attorney-client relationship. The choice of a lawyer is an important decision and should not be based solely upon advertisements. If this E-Alert is deemed to be an advertisement please disregard this solicitation if you have already engaged a lawyer in connection with the legal matter referred to in this solicitation. You may wish to consult your lawyer or another lawyer instead of us. The exact nature of your legal situation will depend on many facts not known to us at this time. You should understand that the advice and information in this solicitation is general and that your own situation may vary. This statement is required by rule of the Supreme Court of Missouri.