Addressing the issue for the first time, and more definitively than any other federal appeals court to date, the U.S. Court of Appeals for the Tenth Circuit has ruled that the affirmative defense to liability established by the Supreme Court for sexual harassment claims also applies to claims of age-based harassment.
The decision by the appeals court in Stapp v. Curry County Board of County Commissioners, No. 16-2067 (10th Cir. Dec. 6, 2016), pointing to the “common substantive features” and policy objectives shared by Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA), concludes that it makes sense to extend the sex harassment liability standards established by the Supreme Court in its landmark Faragher v. City of Boca Raton and Burlington Industries v. Ellerth decisions to the age context.
Thus, under the standard adopted by the Tenth Circuit, once a plaintiff establishes that he or she was subjected to a hostile work environment by a supervisor because of age, the employer can avoid liability by proving that: (1) it exercised reasonable care to prevent and promptly correct the harassing conduct (i.e., maintained effective anti-harassment policies and complaint procedures); and (2) the plaintiff unreasonably failed to take advantage of those procedures.
A copy of the Tenth Circuit’s Stapp decision is available online here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.