Abstract
In 1998, the United States Supreme Court issued two opinions that delicately balanced the responsibilities of employers and employees in fulfilling Title VII’s goal of eliminating discrimination in the workplace. Those two opinions—Faragher v. City of Boca Raton and Burlington Industries,Inc. v. Ellerth—require employers to implement measures to prevent harm to their employees, but also require employees to take advantage of those measures to avoid harm. Numerous articles have evaluated the responsibilities of the employer under Faragher and Ellerth. But little, ifany, emphasis has been placed on the responsibilities of the employee. This article evaluates the role of the employee in avoiding harm and, analyzing recent decisions from the Second and Third Circuits, argues that the employee’s responsibilities shouldplay an integral part in evaluating sexual harassment liability.
Similar content being viewed by others
References
Ardale, E. 2000 Employer liability for sexual harassment in the wake of Faragher and Ellerth. Cornell Journal of Law and Public Policy, 9, 585–605.
Baskerville v. Culligan Int’l Co., 50 F.3d 428, 431 (7th Cir. 1995).
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Gary v. Long, 59 F.3d 1391 (D.C. Cir.), cert. denied 116 S. Ct. 569 (1995).
Harris v. Forklift Systems Inc., 510 U.S. 17 (1993).
Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396 (5th Cir. 1996).
Jin v. Metropolitan Life Ins. Co., 310 F.3d 84 (2nd Cir. 2002).
Marks, J. H. 2002 Smoke, mirrors, and the disappearance of “vicarious” liability: The emergence of a dubious summary-judgment safe harbor for employers whose supervisory personnel commit hostile environment workplace harassment. Houston Law Review, 38, 1401–1462.
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
Notman, M. T. 2003 Psychiatric involvement in sexual harassment complaints. Psychiatric Times, 20 (6), 101–103
Novak, J. (2002). “Let’s be reasonable”–-Resolving the ambiguities of the Faragher–Ellerth affirmative defense. Defense Counsel Journal, 68, 211.
Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75 (1998).
Skidmore, D. A., & Kaake, A. R. (2001). Sexual harassment: The supreme court couldn’t really have meant “and.” Labor Law Journal, 52(2), 108–120.
Suders v. Easton, 325 F.3d 432 (3rd Cir. 2003), vacated sub nom., Pennsylvania State Police V. Suders, 124 S. Ct. 2342 (2004).
Taylor, M. (2001). Let’s talk about sex: A clarification of employer liability for supervisor sexual harassment under Title VII. Ohio Northern Law Review, 27, 607–657.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. S 2000e et seq.
Torres v. Pisano, 116 F.3d 625 (2nd Cir.), cert. denied, 522 U.S. 997 (1997)
Woodford, K. C., & Rissetto, H. A. (2003). Tangible employment action: What did the supreme court really mean in Faragher and Ellerth. The Labor Lawyer, 19(1), 63–81.
Author information
Authors and Affiliations
Rights and permissions
About this article
Cite this article
Woodford, K.C. Balancing Employee Rights and Responsibilities in Sexual Harassment Cases Following Faragher and Ellerth: An Employer’s Perspective. Employ Respons Rights J 16, 233–240 (2004). https://doi.org/10.1007/s10672-004-4638-2
Issue Date:
DOI: https://doi.org/10.1007/s10672-004-4638-2