SURVEY OF the scores of lower court decisions handed down since the U.S. Supreme Court established the standards for imputing liability to employers for sexual harassment engaged in by supervisors reveals a trend towards applying these guidelines to other forms of workplace harassment under Title VII of the Civil Rights Act, such as race-based harassment, and to harassment under other anti-discrimination laws including the Age Discrimination in Employment Act. In applying the Supreme Court’s 1998 Ellerth/Faragher decisions,[1]� the lower courts have focused on the employer’s good faith efforts to prevent and correct workplace harassment.
If an employer is to avoid costly and protracted litigation, vicarious liability and substantial punitive damages, it must do much more than craft and disseminate an anti-harassment policy. A crucial lesson to be learned from the lower courts’ application of Ellerth/Faragher, most notably in the context of summary judgment motions, is that the proverbial “ounce of prevention” will not suffice.
