Litigating Workplace Harassment in The Wake of Ellerth and Faragher

Bernadette Marczely

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DOI: 10.2190/G2V7-HV1K-7G3H-1JX9

Abstract

Recently, the U. S. Supreme Court has issued a flurry of rulings intended to clear the murky waters of sexual harassment and give lower courts guidance in assessing employer liability in these suits. While employers have always been liable for tangible injuries to employees harassed by their agents, there has been a question about their liability for harassment resulting in no tangible injury to the plaintiff. The recent spate of Supreme Court rulings extended employer liability to include even those instances of harassment where the victim remains physically and economically intact, but in the interest of prescriptive policymaking from the bench, allowed employers to avoid liability by invoking an affirmative defense designed to encourage employer policies and procedures that discourage hostile workplace environments. This study explores the success of the Court's efforts.

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