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.