8.60 Elements of Defense: Affirmative Defense (For Use in Supervisor Cases With No Tangible Employment Action) is an argument that can be used by employers to defend themselves against wrongful termination, discrimination, or other claims brought by employees. This defense asserts that the employer took reasonable steps to prevent and correct any harassment or discrimination that the employee might have experienced, and that the employee failed to take advantage of the employer’s corrective measures. This defense is most commonly used in cases of supervisor harassment or discrimination where no tangible employment action (such as termination or demotion) is taken against the employee. The 8.60 Elements of Defense: Affirmative Defense (For Use in Supervisor Cases With No Tangible Employment Action) typically include the following components: 1. The employer exercised reasonable care to prevent and correct any harassment or discrimination that the employee might have experienced. 2. The employee failed to take advantage of the employer’s corrective measures. 3. The employee failed to report the harassment or discrimination to the employer in a timely manner. 4. The employee unreasonably failed to avoid or reduce the harm. 5. The employer took prompt and appropriate corrective action in response to the employee’s complaint. 6. The employer took reasonable steps to prevent any further harassment or discrimination. 7. The employer’s actions were sufficient to prevent any further harassment or discrimination. 8. The employee’s damages (if any) were not caused by the employer’s negligence.
8.60 ELEMENTS OF DEFENSE: AFFIRMATIVE DEFENSE (For Use in Supervisor Cases With No Tangible Employment Action)
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Three Valid Defenses Bona Fide Occupational Qualification (BFOQ)Legitimate, Non-Discriminatory Reason.False or Misrepresented Allegations.
CPLR 3018(b) contains the following, non-exhaustive list of defenses that should be affirmatively pleaded in an answer: Arbitration and award. Collateral Estoppel. Culpable conduct of the plaintiff under CPLR Article 14-A. Discharge in bankruptcy. Illegality. Fraud. Infancy or other disability of the defendant. Payment.
The Affirmative Defense exists for employers as a means to defend against claims and lawsuits on issues such as Harassment, Discrimination & Retaliation. Without an Affirmative Defense employers are left exposed to unnecessary and increased fines and penalties.
Self-defense, entrapment, insanity, necessity, and respondeat superior are some examples of affirmative defenses.
Three Valid Defenses Bona Fide Occupational Qualification (BFOQ)Legitimate, Non-Discriminatory Reason.False or Misrepresented Allegations.
Tangible employment actions are decisions that significantly change an employee's employment status. Examples include decisions involving hiring, firing, promoting, demoting, compensation, benefits and reassignments.
The affirmative defense requires a showing 1) that the employer exercised reasonable care to avoid harassment and to eliminate it when it might occur, and 2) that the complaining employee failed to act with "reasonable care" to take advantage of the employer's safeguards and otherwise to prevent harm that could have
These reasons may include educational requirements, merit, productivity, the presence of a valid seniority system, or a number of other non-discriminatory reasons used to reach a hiring decision. Employers may also raise affirmative defenses such as a bona fide occupational qualification (BFOQ) and business necessity.