Last year, the U.S. SupremeCourt handed down two decisions heralded as significantly clarifying andrestating the law governing employer liability for its supervisors’ sexualharassment. Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257(1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998).In these decisions, the Court stated that employers would always be subjectto vicarious liability for the discriminatory acts of their supervisors.
However, if the supervisor’sdiscriminatory acts did not result in a tangible employment action, theCourt held that an employer would not be subject to vicarious liabilityif it could demonstrate both elements of the following affirmative defense:1) “the employer exercised reasonable care to prevent and correct promptlyany harassing behavior;” and 2) “the employee unreasonably failed to takeadvantage of any preventative or corrective opportunities provided by theemployer or to avoid harm otherwise.” This affirmative defense, the Courtreasoned, promoted the goals of providing employers with an incentive toprevent and correct harassment, and of encouraging employees to avoid orlimit harm.
