Legal Memorandum: Discriminatory Action in an Employment Matter

Issue: Whether a plaintiff failed to take advantage of preventive and corrective opportunities provided to avoid harm otherwise in an employment matter Louisiana?

Area of Law: Employee Law, Litigation & Procedure
Keywords: Preventive and corrective opportunities; Claims of sexual harassment
Jurisdiction: Federal, Louisiana
Cited Cases: 739 So. 2d 893; 524 U.S. 775
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, at *10 (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.  Id., 1998-1456, at *12-*13, 739 So. 2d at 901.


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