Addressing the Growing Inadequacies of the Ellerth/Faragher Affirmative Defense: Fashioning a Sensible and Feasible Solution

Authors: Gomes, Glenn¹; Owens, James²; Morgan, James²

Source: Employee Responsibilities and Rights Journal, Volume 17, Number 1, March 2005 , pp. 31-45(15)

Publisher: Springer

Buy & download fulltext article:

Price: $47.00 plus tax (Refund Policy)

Abstract:

Public policy seeks an equitable balance between the rights and duties of both employers and employees in creating a workplace free of sexual harassment. This goal is particularly difficult to achieve when supervisors create a hostile work environment. The U.S. Supreme Court’s decisions in Ellerth and Faragher created an affirmative defense against vicarious liability for employers, but subsequent applications of these rulings have been inconsistent and problematic. Courts and legislators need to (1) choose the appropriate standard of employer liability for sexual harassment committed by supervisors, and (2) decide what, if any, defenses are available to employers when employees bring claims of sexual harassment. We conclude that holding employers strictly liable while allowing for the limitation of damages based on “avoidable consequences,” as recently adopted by the California Supreme Court in McGinnis, is preferable to other liability standards and defenses.

Keywords: sexual harassment; avoidable consequences; strict liability; affirmative defense

Document Type: Research article

DOI: http://dx.doi.org/10.1007/s10672-005-1812-0

Affiliations: 1: Management Department, College of Business, California State University, Chico, Chico, California, USA, Email: ggomes@csuchico.edu 2: Management Department, College of Business, California State University, Chico, Chico, California, USA,

Publication date: 2005-03-01