Labor: No liability for pre-EEOC investigations

2nd Circuit ruling also finds Ellerth-Faragher defense inapplicable to proxy-level supervisors

Employers generally investigate an employee’s discrimination or harassment claim internally, before a charge of discrimination is filed with the Equal Employment Opportunity Commission (EEOC) or the state’s administrative agency equivalent. Investigating discrimination and harassment claims early on not only helps minimize the effects of discrimination or harassment on the complaining employees, but also helps resolve such claims prior to the institution of administrative proceedings and/or costly litigation.

On May 9, in Townsend v. Benjamin Enterprises, Inc., the 2nd Circuit ruled that employees cannot sue under Title VII of the Civil Rights Act of 1964 for retaliation based on participation in an internal investigation of a complaint that had not yet been filed with the EEOC. Further, the 2nd Circuit ruled that sufficiently high-level supervisors within an organization that can be considered to be the organization’s “proxy” or “alter ego” cannot avail themselves of the Ellerth-Faragher defense to a harassment complaint.

Proxy-level managers are not protected from harassment claims by the Ellerth Faragher defense

In Townsend, an employee complained that she was being sexually harassed by the company’s vice president and shareholder (who was also the husband of the company’s president). The district court held a jury trial, which resulted in a verdict in favor of the complaining employee. The 2nd Circuit affirmed the jury verdict after considering the applicability of the Ellerth-Faragher defense.

Contributing Author

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David Ritter

David B. Ritter is partner and chair of the Labor & Employment practice at Neal, Gerber & Eisenberg LLP, representing management in all areas of...

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