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Legal Memorandum: Defense to a Sexual Harassment Claim in LA

Issue: When is an employee’s failure to take advantage of preventive and corrective opportunities provided a defense to a sexual harassment claim?

Area of Law: Employee Law
Keywords: Sexual harassment claims; Preventive and corrective opportunities
Jurisdiction: Federal, Louisiana
Cited Cases: 739 So. 2d 893
Cited Statutes: None
Date: 05/01/2010

            As stated in Faragher v. City of Boca Raton, 524 U.S. 775, 777-78 (1998), the U.S. Supreme Court held that, in claims of sexual harassment, an employer has an affirmative defense if it can prove (1) that it exercised reasonable care to prove and correct promptly any sexually harassing behaviors; and (2) that the plaintiff unreasonably failed to take advantage of preventive or corrective opportunities the employer provided, or to avoid harm otherwise.  Accord Tanner v. Reynolds Metals Co., 1998-1456 (La. App. 1 Cir. 6/25/99); 739 So. 2d 893, 899.  When the plaintiff employee claims sexual harassment, but the evidence shows that she never complained to the employer about the alleged harassment, the employer has effectively demonstrated that the employee failed to take advantage of preventive or corrective measures provided by the employer or otherwise to avoid harm.  739 So. 2d at 901.

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