Employees who are victims of sexual harassment must take great care to protect their rights. The First Circuit's decision in Chaloult v. Interstate Brands represents a broadening of the Farragher/Ellerth defense, which allows employers to escape liability even when sexual harassment occurs.
The Farragher/Ellerth defense is an affirmative defense arising out of two 1998 Supreme Court decisions: Farragher v. City of Boca Raton, and Burlington Industries v. Ellerth. For the Farragher/Ellerth defense to be apply, an employer must satisfy two elements: (1) reasonable care was taken to prevent and promptly correct the harassing or discriminatory behavior, and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided.
In June 1999, Bonnie Chaloult began working at Interstate Brands in Biddeford, Maine. In August 2005, Chaloult resigned after a enduring a series of demeaning conduct from her co-worker/supervisor, Kevin Francoeur.
- Accusing Chaloult of having sexual relations with her direct supervisor
- Complaining about his wife, his lack of sexual relations with her, and voicinghis desire murder his wife
- Asking about the distance between her nipples and telling her to go home and measure this distance
- Asking her if her nipples chafed or stood out like headlights
- Stating that her breasts were “melons” and “big hooters”
- Asking her to hold her breath and push her chest out
- Offering to go to her house and have sex with her
- Stating that he wanted to see how far she could stick an eclair down her throat, stating "[i]f there isn't enough cream in there, . . . I have plenty"
- Asking Chalout’s supervisor, “How long have you [two] been fucking?"
The court concluded that the employer's policy requiring all supervisors, regardless of whether they were co-workers, to report sexual harassment, did not increase the scope of the employer's legal liability as a matter of law under Title VII
For the first time she related a number of very specific complaints about other statements.
Chaloult's testimony at deposition included the following specific allegations, which she had not mentioned to Santos or in her November 11, 2005 exit comment form. One claim of harassment is that Francoeur frequently complained about his wife and his lack of sexual relations with her. At deposition, Chaloult said Francoeur made these comments openly to supervisors and also said he wished he could murder his wife. Chaloult did not report the comments to anyone.
