Title VII does not purport to forbid them, and would be quixotic if it did. Many happy marriages have grown out of such encounters. Some of the encounters are abusive from the start, and some start well and turn ugly and engender charges of sexual harassment that sometimes have and sometimes lack merit. The words, the gestures, the other behaviors that differentiate the fully consensual relationship from the coercive relationship will often be invisible to the supervisor's superiors. . . . It is facile to suggest that employers are quite capable of monitoring a supervisor's actions affecting the work environment.
Large companies have thousands of supervisory employees.
Chief Judge Posner's comments raise a point sometimes neglected in this debate that sexual harassment is, in a very crucial way, unlike any other form of discrimination. It is always unlawful for a supervisor, for example, to hire or fire on the basis of race, sex, religion, age, or national origin. But if a supervisor makes a sexual advance to a co-worker, it is unlawful only if it is unwelcome or offensive. As a consequence, as Chief Judge Posner notes, the company must differentiate between consensual and coercive relationships a task that will often be virtually impossible. For this reason alone, the company should be liable for unremedied sexual harassment only if the employee reported the harassment or there is otherwise a factual basis for concluding that the company should have known about the harassment.