Employer Complies with Faragher/Ellerth Even Where it Conducts No Investigation

The case involved a male employee who worked for Channel 11 TV in Seattle.?? The employee claimed that he was sexually harassed, subject to retaliation, and constructively discharged as a result of the harassment and retaliation. He brought claims under both Title VII and the WLAD.????? ?Judge Coughenour granted the employers motion for summary judgment.?? The Ninth Circuit unanimously affirmed on the retaliation and constructive discharge issues, without noting that the WLAD does not require proof? of? a? constructive? discharge.?? ?The? panel ruled 2-1 that the employer had met both prongs of the Faragher/Ellerth affirmative defense, without either the majority, the dissent, or apparently the parties explicitly addressing whether such an affirmative defense even exists under the WLAD.?? Washington Supreme Court precedent ?certainly ?suggests ?it ?does ?not.?? ?In dissent, Judge Paez rejected the majority?s holding that an employer can have undertaken reasonable measures to correct harassment without performing an investigation.?? He also rejected the majority?s holding that there is no duty to investigate where the employee does not inform the employer of specific details of the incident.???? As Judge Paez noted, the very purpose of an investigation is to discovery ?the gory details.?? ?Judge Paez also dissented from the majority?s holding that an employer? ?has? ?no? ?duty? ?to?? investigate? ?if? ?the employee asks the employer not to take action on his ?complaint.?? ?Hardage ?v. ?CBS, ?Inc., ?No. ?03-35906 (Wallace, Silverman, Paez 11/1/05).