Twenty Years After Faragher and Ellerth, Is It Time to Re-visit Strict Vicarious Liability for On-The-Job-Sexual Harassment?

90 Pages Posted: 25 Sep 2018

See all articles by David B. Oppenheimer

David B. Oppenheimer

University of California, Berkeley - School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: September 19, 2018

Abstract

In 1995, I published the attached article in the Cornell Law Review, arguing that a proper application of agency law would impose strict vicarious liability on employers for nearly all on-the-job sexual harassment. (See Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L. Rev. 66 (1995).) Three years later, the U.S. Supreme Court decided the cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Ellerth v. Burlington Industries, 524 U.S. 742 (1998), taking a different approach. The Court held that in the absence of a tangible employment decision (such as termination of employment), an employer sued for sexual harassment could assert an affirmative defense that it had an anti-harassment policy that the employee unreasonably failed to invoke, and that it vacted properly once on notice of the harassment.

As the #MeToo movement dramatically illustrates, in the ensuing twenty years, the law of harassment has woefully failed to protect women workers. All too often women harassed on the job find their cases dismissed or decided against them on summary judgment because they failed to properly follow their employer’s anti-discrimination policy, even when the employer knew of the harassment. As Lauren Edelman argues in Working Law (2016), courts have accepted the existence of anti-discrimination policies as persuasive proof of a lack of discrimination/harassment, even in the face of evidence that the policies are ineffective, or serve only a symbolic purpose.

This may be a good time, then, to return to the common law of agency, and the duties it imposes on employers to protect the safety of employees. For good reasons of public policy, worked out over many years, those rules usually impose strict liability on employers for harm caused by or to employees, and treat these as duties an employer may not delegate to others. Re-visiting Exacerbating the Exasperating seems like a good place to start.

Keywords: sexual harassment, vicarious liability, employer liability, respondeat superior, agency

Suggested Citation

Oppenheimer, David B., Twenty Years After Faragher and Ellerth, Is It Time to Re-visit Strict Vicarious Liability for On-The-Job-Sexual Harassment? (September 19, 2018). UC Berkeley Public Law Research Paper; Berkeley Comparative Equality & Anti-Discrimination Law Study Group 2018 Conference at Melbourne Law School at the University of Melbourne. Available at SSRN: https://ssrn.com/abstract=3252112 or http://dx.doi.org/10.2139/ssrn.3252112

David B. Oppenheimer (Contact Author)

University of California, Berkeley - School of Law ( email )

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University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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