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

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

40 Pages Posted: 24 Apr 2001 Last revised: 30 Apr 2010

David Sherwyn

Cornell University

Michael Heise

Cornell Law School

Zev J. Eigen

Littler Mendelson

Date Written: April 30, 2010

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.

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

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: https://ssrn.com/abstract=267088

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

Littler Mendelson

2049 Century Park E
Suite 500
Los Angeles, CA 90067
United States

HOME PAGE: http://www.littler.com/people/dr-zev-j-eigen

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