After Ellerth: The Tangible Employment Action in Sexual Harassment Analysis
In this Article, Professor Grover argues that courts too readily allow employers to avoid vicarious liability for supervisors’ unlawful sexual harassment of subordinates. The Article explores the breadth of the affirmative defense first introduced in the Supreme Court’s 1998 cases of Faragher v. Boca Raton and Burlington Indus., Inc. v. Ellerth. That defense clears an employer of liability for a supervisor’s unlawful sexual harassment if (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Because the defense applies only if the harasser takes no tangible employment action against the harassed employee, the meaning ascribed to the “tangible employment action” concept is pivotal.
This Article concludes that courts often define the term too narrowly, or simply engage in outcome-based analysis, allowing defendants to invoke the affirmative defense in cases that actually involve tangible employment actions, and thus should not qualify for the defense. After reviewing the history sexual harassment doctrine and of the rules for imputing liability to employers, Professor Grover explains the ways in which the Supreme Court’s Ellerth and Faragher decisions resolved some questions about imputing liability for harassment, but created others. She explores the range of meanings courts ascribe to the tangible employment action concept, and suggests that such a broad application of the affirmative defense defeats the purpose of Title VII.