At issue in this case are the two elements of the Faragher-Ellerth affirmative defense that Susquehanna County raised. The District Court granted summary judgment in favor of the County, holding that the elements of this defense had been proven as a matter of law. The Third Circuit of the United States Court of Appeals vacated the judgment of the District Court, holding that the elements of the Faragher-Ellerth affirmative defense should be decided by a jury.
Chaloult v. Interstate Brands Corp., 540 F.3d 64 (1st. Cir. 2008)
The First Circuit of the United States Court of Appeals discusses the affirmative defense available to employers when the harassment is by the plaintiff’s supervisor.
John H. Marks, Smoke, Mirrors, and the Disappearance of “Vicarious” Liability: The Emergence of a Dubious Summary-Judgment Safe Harbor for Employers Whose Supervisory Personnel Commit Hostile Environment Workplace Harassment
This article discusses two different lines of court cases post-Ellerth and how they helped manufacture a summary judgment safe harbor for employers. John H. Marks challenges the logic and the policy implications of this safe-harbor stretgy and argues that post-Ellerth lower courts have been far too deferential to the strategy at the summary judgment stage of litigation.
Joanna L. Grossman, The First Bite Is Free: Employer Liability for Sexual Harassment
Joanna L. Grossman, The First Bite Is Free: Employer Liability for Sexual Harassment
“In June, 1998, the Supreme Court issued two decisions, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton that established new standards for employer liability for sexual harassment. Although the two cases presented different questions and factual predicates, the Court adopted a unified holding with respect to employer liability for supervisor harassment.
Many commentators interpreted the new standards as a blow to employers based on the perception that employers would now be held accountable for workplace harassment without regard to their culpability.The thesis of this article is that the conventional wisdom with respect to Faragher and Ellerth is dead wrong. Those decisions, far from imposing additional liability on innocent employers, have instead created a virtual safe harbor that protects employers from liability unless their own conduct is found wanting. This protection for employers comes at a high price, depriving some victims of actionable sexual harassment of legal redress.”
Justin P. Smith, Letting the Master Answer: Employer Liability for Sexual Harassment in the Workplace After Faragher and Burlington Industries
“In two recent Supreme Court cases, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, the Court clarified the standard by which employers are held liable for sexual harassment committed by their employees. In this Note, Justin Smith analyzes these decisions and concludes that the Court moved the law in the right direction by resolving conflicting and convoluted agency doctrines applied by the lower courts, by imposing strict liability on employers for all sexual harassment by supervisors, and by allowing a contributory negligence defense for employers in some circumstances. However, he argues that the new liability regime, in which liability standards vary depending both upon the type of harassment and upon the relative positions of harasser and victim in the employment hierarchy, is less than ideal Applying an economic understanding of causation, the author finds no sound basis for varying liability standards. Instead, he proposes a uniform regime of strict vicarious liability on employers for all sexual harassment by their employees, coupled with an extension of the contributory negligence defense to all sexual harassment cases.”
Martha Chamallas, Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law
Martha Chamallas, Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law
“This Article takes issue with both the Court’s importation of tort and agency principles and its reluctance to hold employers vicariously liable for discriminatory acts of employees. With respect to the Court’s decision to borrow agency principles, I argue in Part II that such a move was not required by the statutory language of Title VII and should not be understood as furthering congressional intent.5 Part III then turns to the case law and tracks the Supreme Court’s importation of agency principles and the gradual erosion of vicarious liability in key decisions governing employer liability in the sexual harassment context.6 Beyond the questionable move to rely on private law to determine the scope of Title VII liability, I show how the Court’s uptake of tort and agency principles has been selective and misguided, leading the Court to reach results that were neither inevitable nor desirable as a matter of policy.”
David Benjamin Oppenheimer, Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors (1995)
“This Article examines and criticizes the courts’ failure to uniformly impose vicarious liability on employers in cases involving sexual harassment by supervisors, and considers the confusing rules applied by the federal courts and the EEOC when determining employer liability for sexual harassment. It then compares federal law to the state law of California, which imposes absolute vicarious liability on employers for all on-the-job sexual harassment by supervisors (the “California Rule”). This Article concludes that the federal courts should adopt the California Rule as the proper application of Title VII. Should the courts fail to do so, Congress should amend Title VII to require the California Rule.”
Vance v. Ball State University, 570 U.S. 421 (2013)
In Vance v. Ball State University, 570 U.S. 421 (2013), the Supreme Court discusses the definition of a “supervisor” for the purposes of liability for workplace harassment under Title VII.
Nadine Taub, Keeping Women in Their Place: Stereotyping Per Se as a Form of Employment Discrimination (1980)
“Employers’ preconceived notions of appropriate role behavior influence the definition of jobs, the evaluation of work performance, and the assignment of workers to jobs, thus detracting from the maximal contribution that the individual worker’s abilities would allow. At the same time, employer and society role expectations of women have a negative impact on a woman’s motivation and performance in a work environment. Thus, the first section concludes that attitudinal factors internalized by both employer and employee constitute a primary obstacle to equal employment opportunity, and that such attitudinal factors are reinforced continually by adverse employment decisions grounded in stereotypical role expectations. The first section of this article proposes that such stereotypically based decisions be recognized under our fair employment laws as discrimination per se. Following this review of social science studies, the case law concerning sexual harassment is examined in detail to show the inadequacies of present concepts of discrimination in addressing discriminatory employment decisions that reflect and reinforce these attitudinal barriers. The capacity of present concepts to explain other instances believed to constitute discrimination is also explored. From this review it is again concluded that an additional concept of discrimination is needed. In the final section, this proposal is related to present concepts of discrimination and evaluated in terms of its feasibility.”
Carly McCann, Donald Tomaskovic-Devey, M.V. Lee Badgett: Employer’s Responses to Sexual Harassment (December 2018)
“Sexual harassment is a pressing national issue in both the public sphere and many workplaces. Recent high-profile allegations in the media, government, and prominent firms as well as the accompanying social movements (such as #TimesUp and #MeToo) have raised the visibility of sexual harassment, strongly suggesting that workplace sexual harassment has not been effectively addressed—or perhaps even taken seriously—by many employers.
In this report, we examine employer responses and the outcomes of 46,210 Title VII sexual harassment discrimination charges filed between 2012 and 2016 with the U.S. Equal Employment Opportunity Commission (EEOC) and state Fair Employment Practices Agencies (FEPAs). We also examine the EEOC’s processing of the 33,304 Title VII sexual harassment charges filed solely with the EEOC.”