Defendant Dodges a Bullet When Preparing a Two-Part Faragher-Ellerth Report

February 9, 2022

Based on two United States Supreme Court decisions, defendants sometimes may assert what is known as a “Faragher-Ellerth” affirmative defense to discrimination and harassment claims. To successfully assert that affirmative defense, litigants must demonstrate that they investigated any claims, and then took reasonable remedial steps. Not surprisingly, litigants relying on such a defense normally cannot withhold as privileged or as protected work product the investigation results upon which they intend to rely.

In Rheeder v. City of Marion, No. 20-1116, 2021 Iowa App. LEXIS 1013 (Iowa Ct. App. Nov. 23, 2021), defendant asserted a Faragher-Ellerth affirmative defense, and thus acknowledged that it could not withhold an outside lawyer’s investigation report about alleged sexual harassment. But the defendant withheld about seven pages of the thirty-four page report, arguing that “it never waived privilege as to the redacted portion of the report dealing with disparate treatment” – because “it did not intend to rely on that portion to support its affirmative defense.” Id. at *15. Based on defendant’s outside lawyer’s affidavit, the court concluded that she “submitted to the city one report on both phases of her investigation” and that “[t]he results of the investigation could well have been divided into two separate reports.” Id. at *19. After reviewing the full report in camera, the court allowed the City to assert its Faragher-Ellerth affirmative defense while withholding the other portion of the outside lawyer’s investigation report.

This case provides a useful warning about the danger of preparing a Faragher-Ellerth investigation report that goes beyond the clients’ specific needs for an affirmative defense.