Faragher, Ellerth and the Federal Law of Vicarious Liability for Sexual Harassment by Supervisors: Something Lost, Something Gained, and Something to Guard Against

Abstract:     
In this article, the author posits that the Supreme Court's articulation of a new standard for vicarious liability under Title VII for sexual harassment by supervisors in Faragher and Ellerth represents a significant severing of ties between state tort law and federal sexual harassment law. The article discusses the influence of sexual harassment law in shaping some state tort law theories of recovery and the influence of state tort respondeat superior analysis on vicarious liability analysis under federal sexual harassment law. The article further suggests that the borrowing of state tort respondeat superior concepts for sexual harassment vicarious liability analysis may have influenced courts to apply the respondeat superior analysis to tort claims in ways they would not have had it not been for the relationship between the two, with courts reading course and scope of employment expansively. Written from the perspective of a torts and employment discrimination teacher, the article expresses some regret over the severing of the tie. It acknowledges, however, that given the different policies underlying respondeat superior liability for torts and vicarious liability for sexual harassment, the creation of a federal common law of vicarious liability in Faragher and Ellerth was a good result; vicarious liability analyses are not "one size fits all" items. The article concludes by warning that courts applying respondeat superior analysis to tort claims should not be influenced by the results produced by the new vicarious liability analysis in sexual harassment cases.

Accepted Paper Series