Employer Liability for Employee Sexual Harassment: A Judicial Policy‐Making Study

Since 1991, sexual harassment has been one of the most hotly debated topics pertaining to employment discrimination. In that year, the Navy's Tailhook convention in Las Vegas revealed long-standing harassment of women naval officers. Also in 1991, the confirmation hearings for Clarence Thomas to become an associate justice on the Supreme Court raised the possibility that he had engaged in sexual harassment while at the Department of Education and the Equal Employment Opportunity Commission (EEOC). Later, Senator Bob Packwood was forced to resign due to substantiated claims of his having engaged in sexual harassment in numerous situations. President Clinton faced charges that he sexually harassed state employee, Paula Jones, while he was governor of Arkansas. In the latter half of the 1990s, the Defense Department, in particular the Army, received negative notoriety about possible widespread sexual harassment. In 1998, Mitsubishi Motor Manufacturing agreed in an out-of-court settlement to pay $34 million in damages to employees who were victims of widespread sexual harassment (EEOC 1998). The courts have been struggling to determine when employers should be responsible for sexual misdeeds carried out by supervisors and lower-level employees. In doing so, the courts have been left to fashion policies without much guidance from Congress. In 1998, the Supreme Court issued four decisions involving sexual harassment. This article examines these new "policy directives" of the Court, assesses the current status of sexual harassment law in light of the decisions, identifies where confusion still exists as to when employers can be held liable for sexual harassment, and considers whether congressional and/or administrative action is needed. Overview The four cases raised these questions about the liability of employers for sexual harassment: * Is a school district liable for a teacher engaging in sex with a high school student when school officials were unaware of the sexual conduct? This question was asked in Gebser v. Lago Vista Independent School District (106 F.3d 1223 [5th Cir. 1997]; 118 S.Ct. 1989 [1998]). * Is an employer liable when a man is sexually harassed by his male boss and a male coworker? In other words, is same-sex discrimination proscribed under the law? This question was raised in Oncale v. Sundowner Offshore Services, Inc. (83 F.3d 118 [5thCir. 1996]; 118 S.Ct. 998 [1998]). * Is an employer liable for sexual harassment of a woman by her male boss, when evidence is lacking that she was harmed by the harassment and indeed had been promoted during the period of alleged harassment? This was the question in Burlington Industries v. Ellerth (118 S.Ct. 2257 [1998]). * Is an employer liable for sexual harassment of women by their male supervisors, when the women did not report the alleged abuse and evidence was lacking that superiors knew of the harassment? The case of Faragher v. City of Boca Raton (111 F.3d 1530 [11th Cir. 1997]; 118 S.Ct. 2275 [1998]) presented this question to the Court. The fact that two of these cases involved private employers and two involved public employers is largely irrelevant, since sexual harassment law applies equally to most public and private employers. What is relevant is how a law is applied in a specific situation. The first case to be reviewed, Gebser, was brought under the 1972 Title IX Amendments to the Education Act. The other three cases were brought under Title VII of the Civil Rights Act of 1964 (see Lee and Greenlaw 1997b). Further, while the first two cases concentrated on the wording and application of these respective statutes, the other two cases involved not only Title VII but also common law or judge-made law. Common law originated centuries before statutory or legislatively made law. Common law is what courts create when ruling on cases, resulting in what is called precedent. …