Abstract

http://ssrn.com/abstract=267088
 
 

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Don't Train Your Employees and Cancel Your '1-800' Harassment Hotline: An Empirical Examination and Correction of the Flaws in the Affirmative Defense to Sexual Harassment Charges


David Sherwyn


Cornell University

Michael Heise


Cornell Law School

Zev J. Eigen


Northwestern University School of Law

April 30, 2010

Fordham Law Review, Vol. 69, No. 4, March 2001

Abstract:     
The Supreme Court's two-pronged affirmative defense limiting employer liability for sexual harassment, articulated in the Faragher and Ellerth decisions, generated substantial scholarly commentary. Many scholars were quick to predict how lower courts would apply the affirmative defense. However, many predictions about the affirmative defense were advanced prior to the emergence of a sufficient number of judicial opinions applying it.

In this article we report results of our empirical study of the first 72 post-Ellerth and Faragher opinions involving employers' summary judgment motions that include affirmative defenses in response to allegations of sexual harassment in the workplace. We find that employer-related factors heavily influence the courts' construction of both prongs of the affirmative defense. Somewhat surprising is the degree to which the courts look to employer conduct when characterizing employee conduct. In our discussion we consider the legal and policy implications generated by an incentive structure informed by the courts' application of the affirmative defense.

Note: This is a description of the paper and not the actual abstract.

Number of Pages in PDF File: 40

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Date posted: April 24, 2001 ; Last revised: April 30, 2010

Suggested Citation

Sherwyn, David and Heise, Michael and Eigen, Zev J., Don't Train Your Employees and Cancel Your '1-800' Harassment Hotline: An Empirical Examination and Correction of the Flaws in the Affirmative Defense to Sexual Harassment Charges (April 30, 2010). Fordham Law Review, Vol. 69, No. 4, March 2001. Available at SSRN: http://ssrn.com/abstract=267088

Contact Information

David Sherwyn
Cornell University ( email )
School of Hotel Administration
Ithaca, NY 14853
United States
Michael Heise (Contact Author)
Cornell Law School ( email )
310 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
607-255-0069 (Phone)
607-255-7193 (Fax)
Zev J. Eigen
Northwestern University School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States

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