What U.S. Employers Can Learn from the UK’s Harassment Defense
When I started working between the U.S. and UK employment law systems, I expected them to be wildly different. New country, new case law, new acronyms.
But the deeper I looked especially at harassment and discrimination defenses the more I saw something surprising:
They’re actually very similar.
Both countries give employers a legal way to defend themselves against claims of workplace harassment — if they’ve done the right things. Both systems ask:
Did you take steps to prevent this, and did the employee take steps to report it?
In the U.S., it’s called the Ellerth/Faragher affirmative defense — named after two Supreme Court cases from 1998. In the UK, it’s the “reasonable steps” defense under the Equality Act 2010.
On the surface, they ask the same question. But here’s the difference:
The UK defense has been tested, stretched, refined, and challenged for over a decade. And as a result, it’s stronger.
U.S. Law: A Defense That Only Works If You Do
In the U.S., the Ellerth/Faragher defense is available if:
The employer took reasonable care to prevent and correct harassment, and
The employee unreasonably failed to report it or take advantage of the company’s procedures.
It’s a good idea in principle but patchy in practice. Many employers think they’re protected because they have a policy. But when courts or the EEOC look deeper, they often find:
No proper training,
A toxic culture undermining the policy,
Or managers who didn’t understand their role.
Even worse, in states like California or New York, the federal defense might be recognized but state laws can impose tougher, stricter standards. So even if you win the federal argument, you can still lose the state claim.
The UK’s “Reasonable Steps” Defense: Evolved and Realistic
In contrast, the UK version of this defense has been through the fire. It’s been tested in every kind of case from subtle office banter to serious sexual misconduct. And the courts don’t let you win it easily.
To succeed, UK employers have to show they did everything that could reasonably be expected to stop harassment:
Proactive, tailored training
Accountability for senior leadership
Prompt responses with documented action
A clear track record of following through
The UK courts look at not just whether you had a policy but whether your workplace practiced it. They don’t just want to see your documents. They want to see your culture.
Why This Matters for U.S. Businesses
Here’s the punchline:
If your defense would work under UK law, it’s more than strong enough to succeed under U.S. law in every state.
At Lomond Legal, we’ve taken that evolved UK standard and applied it to our U.S. clients through Rory our fixed-cost, no-deductible employment law and HR solution.
We don't rely on theory. We use:
Third-party audits to prove independence
Leadership-specific training to reinforce accountability
Culture-first policies that reflect how your workplace actually works
Real-world tracking and response — so if a claim lands, you’re ready
The Outcome?
Clients don’t just “tick boxes.” They build a real defense the kind that works in the courtroom, not just in a compliance file.
Because the UK system has already been where the U.S. is going. It's been tested, modernized, and made tougher. That’s why we bring it here not to make life harder for employers, but to make life safer for them.