The First Bite is Free: Employer Liability for Sexual Harassment

In June, 1998, the Supreme Court issued two decisions, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton that established new standards for employer liability for sexual harassment. Although the two cases presented different questions and factual predicates, the Court adopted a unified holding with respect to employer liability for supervisor harassment. Many commentators interpreted the new standards as a blow to employers based on the perception that employers would now be held accountable for workplace harassment without regard to their culpability. The thesis of this article is that the conventional wisdom with respect to Faragher and Ellerth is dead wrong. Those decisions, far from imposing additional liability on innocent employers, have instead created a virtual safe harbor that protects employers from liability unless their own conduct is found wanting. This protection for employers comes at a high price, depriving some victims of actionable sexual harassment of legal redress. Part I of this article outlines the new standards for employer liability for supervisory harassment and their doctrinal underpinnings. The Court in Faragher and Ellerth noted that negligence provides a minimum standard of liability for harassment by any employee, but concluded that in addition employers can be held vicariously liable for supervisor harassment based on the agency principle that holds masters liable for the actions of their servants when those servants are aided by the agency relation. Because supervisors who harass their subordinates meet that test, agency principles justify holding employers vicariously liable for the harassment. However, the Court fell short of a pure rule of strict vicarious liability by providing employers with an affirmative defense in cases where the supervisor did not take any tangible employment action against the victim (namely, hostile environment cases). An employer who can prove the affirmative defense can reduce its damages or escape liability altogether. Part II of the article revisits these new standards as applied to a series of hypothetical cases and demonstrates that the standards of liability are far more indulgent to employers than an abstract discussion suggests. The effective standard of employer liability turns primarily on the construction of the affirmative defense. If the affirmative defense affects only the remedies available, then the standard adopted more closely approximates strict liability: the employer\u27s after-the-fact efforts to stop the harassment and the victim\u27s failure to complain do not negate liability, but instead mitigate damages. If, however, the affirmative defense negates liability even for the prior acts, then the effective standard becomes far more lenient to employers-hence, the first free bite. Parts III critiques the new standards in theory and in practice: the Supreme Court would have the affirmative defense sometimes affect damages and liability; however, this part argues that the affirmative defense should never affect liability, but only damages. Finally, Part IV critiques the Court for ignoring the many instances in civil rights law where mitigating factors have not been permitted to affect the threshold finding of liability. This part proposes a legislative correction to the problem created by Faragher and Ellerth, one which strikes a reasonable compromise between the competing interests of employers and victims while remaining faithful to the underlying goals of Title VII

Defense of Marriage Act, Will You Please Go Now!

The time has come. The time has come. The time is now. Just go. Go. GO! I don’t care how. You can go by foot. You can go by cow. Marvin K. Mooney, will you please go now! These are the opening lines of Marvin K. Mooney Will You Please Go Now!, a Dr. Seuss book that my three sons and I have read literally hundreds of times. It has all the usual appeal of a Dr. Seuss book -- euphonious rhymes, made-up words and objects, fantastical creatures. But it has something else, too. An air of mystery. The entire book revolves around trying to get rid of Marvin K. Mooney, a typical Dr. Seuss character who is some cross between a bear and a small child. The text alternates between increasingly emphatic requests to leave and suggestions for the best ways to exit. . . . Missing from the story, though, is even a vague hint as to what Marvin K. Mooney might have done to warrant exile, or where he might be headed. That he needs to leave is apparently beyond dispute. The same could be said for the Defense of Marriage Act (DOMA). It has so obviously outlived any purpose it might have once had that it just needs to go. Now. This essay briefly explore the origins of DOMA; its messy and often devastating impact in a world in which some states have legalized same-sex marriage

Hawaii Comes Full Circle on Same-Sex Marriage

Hawaii is where it all started: the modern battle over same-sex marriage, that is. The strong likelihood that Hawaii would legalize same-sex marriage in the early 1990\u27s spurred a nationwide backlash that would stall, but ultimately not prevent, the legalization of same-sex marriage elsewhere. Way back when, Hawaii did not legalize same-sex marriage. But twenty years later, it has done so, with a bill signed into law by Governor Neil Abercrombie this week. The circle is now complete. In this column, I’ll describe Hawaii’s role at the beginning of the modern same-sex marriage controversy, its dramatic impact on state and federal law regarding same-sex marriage, and the state’s circular path to get back where it started

The Winding Path Toward Gender Equality and the Advocates and Scholars Who Forged It

At its broadest, “feminist legal thought” describes the effort across generations to secure equality for women through law. The ideas that have emerged from this work can be loosely typed as “equality theories,” and the statutes, constitutional interpretations, and doctrines they inform can be tied together under the heading of “gender law.

A Partial Legal Victory Against Continuing Discrimination: The New Supreme Court Ruling in \u3cem\u3eAmtrak v. Morgan\u3c/em\u3e

This June, the U.S. Supreme Court decided a technical, but important case interpreting Title VII of the Civil Rights Act of 1964. The case–National Railroad Passenger Corp. (Amtrak) v. Morgan- was a victory for victims of sexual and other forms of harassment, but a loss for victims of other forms of illegal workplace discrimination. The issue was whether incidents of discrimination that occurred outside the statute of limitations could nevertheless form the basis for a suit pursuant to the “continuing violations” doctrine. The answer from the Court, in a decision authored by Justice Clarence Thomas, was “Yes and no.

Resurrecting Comity: Revisiting the Problem of Non-Uniform Marriage Laws

This paper addresses the age-old problem of interstate marriage recognition, raised anew by the legalization of same-sex marriage in Massachusetts. The problem, in a nutshell, is whether and when a state should recognize a marriage validly celebrated elsewhere when its own laws would have prohibited the marriage from taking place. Non-uniform marriage laws and the conflicts they engender are not new. To the contrary, states historically disagreed about many aspects of domestic relations laws, and in particular about marriage prohibitions. Conflicts arose when couples married in one state and then sought recognition of their union in a state that would have prohibited them from marrying - whether because they moved to a new state, had contracted an evasive marriage in another state in violation of their home state\u27s laws, or had some transient contact with a state to which validity of their marriage was relevant. Those conflicts were resolved, by and large, according to principles of comity, which were reflected in the established rules governing conflict of laws. Those rules dictated that states should generally recognize marriages that were valid where celebrated unless doing so interfered with an important public policy or interest of the destination state. This place of celebration rule was subject to both categorical and semi-categorical exceptions. Fifteen years ago, one might have applied this rule and its exceptions to a hypothetical situation involving same-sex marriage in Massachusetts and made the following predictions: a same-sex marriage from one state would certainly be recognized if it was celebrated by a couple who legitimately resided in Massachusetts and later moved to another state; an evasive same-sex marriage might also be recognized in some states, though not as predictably so; and particular incidents of such a marriage might be recognized for limited purposes like inheritance rights in many states, even if the right to cohabit within the state as a married couple was not. The landscape, however, has completely changed. In response to a fear that Hawaii might legalize same-sex marriage in the mid-1990s, Congress enacted the Defense of Marriage Act defining marriage for federal purposes to exclude same-sex marriage and giving states the power to deny recognition to same-sex marriages. More than forty states expressly exercised it by adopting statutes or constitutional amendments to preclude courts from authorizing or recognizing same-sex marriages. These enactments were all based on the assumption that the Full Faith and Credit Clause compels one state to recognize marriages from other states regardless of their own laws or policies. The Full Faith and Credit Clause, however, has never been understood to have that effect. To the contrary, states have always had the right to refuse recognition to out-of-state marriages. Thus, while states were busy protecting themselves from compelled recognition, they lost the right of voluntary recognition, a right exercised considerably more often, historically, than the right to deny recognition. Principles of comity and the portability of marriage have been sacrificed in this process, and the complexity of the analysis that courts have traditionally undertaken has been short-circuited in favor of an unflinching rule of blanket non-recognition. The paper reconsiders the traditional approach to marriage recognition against the current same-sex marriage landscape. It examines whether, under conventional principles of interstate marriage recognition, states that have enacted barriers to recognition have done so successfully. It also examines the question of recognition in the states without any affirmative barrier

Making Sure Pregnancy Works: Accommodation Claims After Young v. United Parcel Service, Inc.

The Supreme Court’s 2015 ruling in Young v. United Parcel Service, Inc. outlined a new analytical framework for Pregnancy Discrimination Act (PDA) claims that challenge employers’ failure to “accommodate” pregnant workers. That framework was intended to lessen the evidentiary burden on plaintiff-employees in showing that others “similar in their ability or inability to work” were accommodated and to increase the burden on defendant-employers in justifying such differential treatment. In the five years since Young, however, lower courts have been inconsistent in their application of this mandate. In this Article, we survey the precedent that set the stage for Young, the decision’s new approach to accommodation claims under the PDA, and the mixed precedent that has followed. We identify for practitioners the flawed reasoning in negative post- Young rulings and emphasize arguments that best fulfill the letter and spirit of Young’s expansive approach to the PDA