An Employer's Affirmative Defense
One option your employer has is to file an affirmative defense. With an affirmative defense, your employer won’t have to deny any charges that have been brought. However, the employer will be able to raise extenuating or mitigating circumstances in order to avoid responsibility in a civil case.
An example of an affirmative defense would be an employer arguing that it exercised reasonable care to prevent and promptly correct harassment. Reasonable care generally requires an employer to establish, disseminate, and enforce an anti-harassment policy and complaint procedure and to take other reasonable steps to prevent and correct harassment.
Despite the attempt to rely on having written policies in place, it’s important to remember that there are no "safe harbors" for employers based on the written content of policies and procedures. However, this doesn’t stop an employer from using this argument in their defense. And, it doesn’t stop the complaining employee from proving that the employer did not take steps—or took inadequate or delayed steps—in preventing and/or correcting harassment.
Another example of the affirmative defense would be an employer arguing that a complaining employee did not take the reasonable and necessary steps to avoid harm from race-based harassment, retaliation, etc. by not reporting the abuse to management or taking advantage of any preventive or corrective opportunities.
An employer who can prove they exercised reasonable care may not be liable for unlawful harassment if the complaining employee could have avoided all of the actionable harm. If some but not all of the harm could have been avoided, then an award of damages will be reduced accordingly. The complaining employee doesn’t have to prove they showed reasonable care…that burden falls on the employer. The employer must show that the employee’s failure to complain of abuse was unreasonable.
Keep in mind, even if an employee doesn’t complain the Federal statute recognizes that there may be legitimate reasons for silence on the issue. For instance, if an employee has seen other complaining employees subjected to retaliatory actions (e.g., fired, demoted, subjected to a hostile work environment, etc.), the employee would reasonably fear making a complaint. Additionally, if illegal abuse is so prevalent in the workplace that many people knew about it, the company would be liable for not addressing the problem because the abuse was so widely known that it is reasonable to expect that someone in authority knew of the problem.
Finally, if an employer files an affirmative defense, the employer must prove the validity of the defense. The employer can’t just state an affirmative defense and hope someone buys it. They must prove this defense.