ARTICLE - Houston Law Review

1401

ARTICLE

SMOKE, MIRRORS, AND THE DISAPPEARANCE OF “VICARIOUS” LIABILITY: THE EMERGENCE OF A DUBIOUS SUMMARY-JUDGMENT SAFE HARBOR FOR EMPLOYERS WHOSE SUPERVISORY PERSONNEL COMMIT

HOSTILE ENVIRONMENT WORKPLACE HARASSMENT

John H. Marks*

TABLE OF CONTENTS

I. INTRODUCTION .....................................................................1402 II. THE SUPREME COURT’S HARASSMENT JURISPRUDENCE

UNDER TITLE VII..................................................................1407 A. The Definition of Workplace Harassment:

An Inherently Vague Threshold of Intangible Discriminatory Abuse...................................................1408

B. The Scope of Employer Liability for Workplace Harassment: A Qualified Form of Vicarious Liability....................................................1413

III. A DUBIOUS SAFE HARBOR DEVELOPING AMONG POST-

ELLERTH LOWER COURTS WHEN DECIDING EMPLOYER MOTIONS FOR SUMMARY JUDGMENT...................................1422

* Associate Professor, Thomas M. Cooley Law School, Lansing, Michigan. I am extremely grateful to my friend and colleague, Professor Dena Brown, for her review of a prior draft of this Article and her willingness to listen to me talk about it for many more hours than I could afford to pay hired counsel.

1402 HOUSTON LAW REVIEW [38:1401

A. The Diligent-Employer Line of Cases: Resurrecting an Independent Defense Based on Prompt Remedial Action Upon Notice of Harassment.........................................1423

B. The Dilatory-Plaintiff Line of Cases: Resurrecting the Anachronistic Defense of Contributory Negligence ..........................................1428

C. The Combined Impact of Both Lines of Cases: A Virtually Guaranteed Summary Judgment Safe Harbor for Employers...................................................1435

IV. A CRITIQUE OF THE DUBIOUS SAFE HARBOR STRATEGY....1437

A. The Problem With the Diligent-Employer Line of Cases: The “and” Between the Two Prongs of the One and Only Defense to Vicarious Liability Does Not Mean “or”.......................................1437

B. The Problem With the Dilatory-Plaintiff Line of Cases: Intensely Factual Questions Generally Preclude Ascertaining, as a Matter of Law, How Much Abuse the Reasonable Person Would Have Avoided....................................................1445

C. A Response to Proposed Alternatives to the Supreme Court’s Rule of Vicarious Liability: The Court’s Rule, If Properly Applied, is Perfectly Adequate for the Task...................................................................1453 1. One Extreme: A Proposal to Delete the Second

Prong of the Ellerth Defense.................................1453 2. The Other Extreme: A Proposal to Impose

Automatic Liability in All Cases..........................1458 V. CONCLUSION .........................................................................1461

[T]here is no single method of determining the rule for which a given authoritative precedent is an authority. Notwithstanding this, in the vast majority of decided cases there is very little doubt. The head-note is usually correct enough.1

I. INTRODUCTION

Three years ago the Supreme Court put to rest an ever-widening divergence of views among lower courts about the proper standard of employer liability for hostile environment

1. H.L.A. HART, THE CONCEPT OF LAW 134 (2d ed. 1994).

2002] WORKPLACE HARASSMENT 1403

harassment of employees by supervisory personnel.2 For about twelve years, lower courts had grappled with primarily negligence-based agency standards that generally allowed employers to escape liability if they took reasonably prompt corrective action upon notice of the harassment.3 Then, in Burlington Industries, Inc. v. Ellerth4 and Faragher v. City of Boca Raton,5 the Supreme Court settled the matter. Issuing joint holdings in these two cases, the Court announced that an employer is subject to “vicarious liability” for a supervisor’s hostile environment harassment of a subordinate, but “a defending employer may raise an affirmative defense to liability or damages.”6 This defense, according to the Court, “comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”7

The Court’s rule of vicarious liability is truly straightforward. To contest liability or damages, a defending employer carries the burden of proving both its reasonable efforts to combat harassment and the plaintiff’s unreasonable failure to avoid harassment. The Court thus overturned the pre-Ellerth rule that treated an employer’s reasonable efforts to combat harassment, alone, as a shield to liability.

Additionally, the new two-pronged defense, if established, does not necessarily defeat recovery. Establishment of the defense, according to the Court, triggers an “avoidable-consequences”8 principle: if reasonable care by the plaintiff would have avoided all harm, the employer avoids all liability; conversely, if reasonable care by the plaintiff would have avoided only some harm, the employer remains liable but does not pay for “damages that could have been avoided.”9

2. Refer to Part II infra for a discussion of workplace harassment and the historical development of employer liability standards for workplace harassment. 3. Refer to Part II infra.. 4. 524 U.S. 742 (1998). 5. 524 U.S. 775 (1998). 6. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. 7. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. 8. Ellerth, 524 U.S. at 764–65; see Faragher, 524 U.S. at 806–07 (describing a “duty to avoid or mitigate harm”). 9. Faragher, 524 U.S. at 807; see Ellerth, 524 U.S. at 764 (adopting “the avoidable consequences doctrine” as a “limitation of employer liability in certain circumstances”).


These straightforward Supreme Court pronouncements plainly compel a simple rule for cases of supervisory hostile environment harassment: an employer who exercises reasonable care nevertheless remains vicariously liable for harm that the victimized employee could not have avoided through reasonable care. If ever a headnote alone was enough, one stating this simple rule would be the case.

The simple rule of Ellerth and Faragher, however, has since been emasculated by many lower courts seemingly bent on dismissing harassment cases on employer motions for summary judgment.10 Approving summary dismissal at a rate of more than fifty percent,11 post-Ellerth lower courts are essentially adjudicating the “vicarious” right out of “vicarious liability” and are resurrecting outdated barriers to the civil rights of harassment victims.12 This article critiques this pro-employer trend, which seems to follow two lines of cases.

One line of post-Ellerth lower courts advances the pro-employer trend with a disjunctive conception of the Ellerth defense.13 Confining the holding of Ellerth and Faragher to the facts of those cases, which consisted of gradually mounting supervisory misconduct, these post-Ellerth courts say that the word “and” between the two prongs of the defense means “or” in cases of rapid-onset harassment (for example, a sudden assault) that neither the victimized employee nor the employer could have prevented. According to some post-Ellerth courts, innocent employers in such cases cannot be vicariously liable simply because they cannot meet the second prong of the defense. As a result of this so-called “modified” reading of Ellerth and Faragher, innocent victims of sudden and severe supervisory abuses are left uncompensated for unavoidable harm.

The second line of cases typically involves a harassment victim who delays complaining about a more gradual pattern of abuses, such as repeated verbal abuses.14 In these cases, post-Ellerth courts, on employer motions for summary judgment, typically find the victim’s delay to be unreasonable whenever employers offer facially adequate harassment complaint procedures. These post-Ellerth courts invariably treat the victim’s purportedly unreasonable delay as something akin to

10. Refer to Part III infra for a more detailed discussion of this post-Ellerth trend. 11. Refer to note 121 infra. 12. Refer to cases cited at note 184 infra, and discussed in Part III.A. 13. Refer to Part III.A infra for a more detailed discussion of the “rapid-onset” line of harassment cases. 14. Refer to Part III.B infra for a more detailed discussion of the “gradual-onset” line of harassment cases.


contributory negligence—a total bar to recovery. Largely ignored is the harm-avoidance analysis required by the second prong of the Ellerth defense. Courts in this line never attempt to ascertain how much harm the reasonable person in the victim’s position would have avoided, and instead assume that purportedly dilatory harassment victims are entitled to nothing.

Combined, these two lines of cases are manufacturing a dubious summary judgment safe harbor for employers.15 To trigger this safe harbor, all an employer has to do is promulgate a harassment complaint procedure. Then, if a victimized employee follows the procedure and the employer promptly intervenes, the employer fully escapes liability, as a matter of law, even if the hostile environment was rapidly imposed before the employer intervened. Alternatively, if the victimized employee delays complaining, as commonly occurs when the misconduct is more gradual, the delay invariably is treated as a complete bar to recovery. In effect, post-Ellerth courts conclude that the reasonable person, as a matter of law, necessarily complains about gradually mounting supervisory misconduct before that conduct crosses an intangibly subtle threshold of actionable abuse.

This Article challenges the logic and the policy implications of this safe-harbor strategy and argues that post-Ellerth lower courts have been far too deferential to the strategy at the summary judgment stage of litigation. As to the first line of post-Ellerth cases, this Article argues that the Supreme Court in Ellerth and Faragher comprehensively resolved the employer liability question, leaving no independent immunity for purportedly innocent employers in cases of rapid-onset harassment—not when at least equally innocent employees have suffered unavoidable supervisory abuse.16 In cases of equal innocence, the Supreme Court’s decisions in Ellerth and Faragher contemplate vicarious liability, which means liability despite the employer’s innocence. The Court’s effort to resolve prior disarray among lower courts resulted in only one defense to vicarious liability, and the availability of that defense hinges conjunctively on proof of both reasonableness on the employer’s part and unreasonableness on the employee’s part. There is simply no independent immunity for an innocent employer when an at least equally innocent employee could not have avoided

15. Refer to Part III.C infra for a more detailed discussion of this safe harbor for employers. 16. Refer to Part IV.A infra for a more detailed critique of the first line of post-Ellerth cases.


harm. Sleight-of-hand attempts to distinguish Ellerth and Faragher, at bottom, do nothing more than resurrect an independent reasonable-employer immunity that the Supreme Court, in fact, plainly overturned in those cases.

As to the second line of post-Ellerth cases, this Article argues that Ellerth and Faragher did not resurrect an archaic defense of contributory negligence against employees who delay complaining about gradually mounting supervisory misconduct.17 The Court, in fact, expressly opted for a rule of causal apportionment. Under the Court’s rule, full dismissal on summary judgment is not proper in cases of even presumably dilatory plaintiffs unless the reasonable person in the plaintiff’s position would have complained in advance of the work environment becoming hostile—indeed, far enough in advance to allow completely preemptive employer intervention. Accordingly, an employer seeking full dismissal on summary judgment against a presumably dilatory plaintiff still must negate any factual issues as to: (1) the point when the work environment became hostile, and (2) some time frame, beforehand, during which the reasonable person necessarily would have complained and the presumably responsive employer would have successfully intervened. Absent these proofs, there necessarily remains a triable question of fact as to whether the dilatory plaintiff’s negligence should operate as a pre-injury failure to avoid all harm, or as a post-injury failure to partially mitigate damages. Summary adjudication without these proofs rests on a flagrant disregard of the Supreme Court’s unequivocal adoption of the avoidable consequences doctrine, results in an unjustified invasion on the province of the jury, and denies vindication for at least some undoubtedly victimized persons who may be entitled to at least nominal damages for an initially unavoidable civil rights violation.

Recognizing the pro-employer peculiarities cropping up in post-Ellerth caselaw, commentators have already begun to call for new employer liability rules. This Article rejects this call for reform and offers a different response: lower courts should simply apply, as written, the rule that is already on the books.18 The Supreme Court’s rule of vicarious liability is truly straightforward, which further exacerbates the appearance of judicial bias underlying renegade post-Ellerth trends. Moreover,

17. Refer to Part IV.B infra for a more detailed critique of the second line of post-Ellerth cases. 18. Refer to Part IV.C infra for a more detailed response to commentators calling for reform.


the Court’s rule sensibly accommodates Title VII’s twin aims of deterrence and compensation with a limited, but certainly real, range of vicarious liability—employer liability without fault for harm the plaintiff could not have avoided through reasonable care. This carefully crafted range of vicarious liability maximizes preventive efforts by both the employer and the employee, while preserving a right to compensation when harm is unavoidable. To be sure, this simple rule may not provide very many employers with a summary judgment shortcut to full dismissal of harassment claims. But creation of a safe harbor was not the Court’s aim.

An examination of that aim begins below in Part II with a review of the Court’s workplace harassment caselaw, beginning with the Court’s initial recognition of a hostile environment prohibition and culminating in the Court’s recent adoption of the Ellerth defense when a workplace supervisor creates the hostile environment. Part III explores post-Ellerth applications of the defense, focusing primarily on lower court summary judgments that routinely treat the defense as a complete safe harbor for purportedly innocent employers sued by employees who sometimes do not properly use complaint procedures provided by employers. Summary adjudication of the defense is critiqued in Part IV, which posits that, in every case, the two prongs of the defense must be applied conjunctively and that, in most cases, a jury needs to decide whether the defense, if established, justifies imputing to the plaintiff a failure to avoid all harm or a failure to partially mitigate damages. The Article concludes that the jury’s judgment about the timing of the hostile environment, and the timing of the reasonable person’s response to it, should seldom be displaced by a summary judgment in favor of the party who bears the burden of proof.

II. THE SUPREME COURT’S HARASSMENT JURISPRUDENCE UNDER TITLE VII

The Supreme Court has visited the issue of discriminatory workplace harassment five times, in a series of cases decided between 1986 and 1998.19 As explained below in Parts II.A and B, these cases have advanced the Court’s jurisprudence along two key fronts: (1) the definition of workplace harassment; and (2) the scope of employer liability for workplace harassment.

19. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).


A. The Definition of Workplace Harassment: An Inherently Vague Threshold of Intangible Discriminatory Abuse

Title VII of the Civil Rights Act of 196420 makes it illegal “for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”21 Enacted against the backdrop of the civil rights movement, Title VII’s primary purpose was to help combat fundamental problems of racial inequality that pervaded virtually every realm of American political and social life, including the workplace.22 To be sure, the enacting Congress of 1964 was focused on problems of racial inequality, not sexual inequality.23 Additionally, the enacting Congress of 1964 was focused on tangibly discriminatory practices in the workplace—outright exclusion and segregation—not intangibly discriminatory practices generally described today as “harassment.”24

Not until the 1970s, during what has been described as a “second generation” phenomena,25 did courts and commentators begin to see Title VII as a truly sweeping legislative tool aimed at the full spectrum of discriminatory practices,26 including

20. 42 U.S.C. §§ 2000e to 2000e-17 (1994). 21. Id. § 2000e-2(a)(1). 22. See United Steelworkers of Am. v. Weber, 443 U.S. 193, 203 (1979) (explaining that Title VII’s enactment was prompted by the need “‘to open employment opportunities for Negroes in occupations which [had] been traditionally closed to them’” (quoting 10 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey))); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 348 (1977) ("The primary purpose of Title VII was ‘to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which [had] fostered racially stratified job environments to the disadvantage of minority citizens.’” (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973))). See also Charles R. Calleros, Title VII and Free Speech: The First Amendment is Not Hostile to a Content-Neutral Hostile-Environment Theory, 1996 UTAH L. REV. 227, 252 (1996) (noting Congress’s concern with racial exclusion and racial segregation in the workplace). 23. Title VII’s prohibition of “sex” discrimination was in fact inserted as an eleventh-hour amendment by an opponent of Title VII who sought to defeat its passage. See CHARLES WHALEN & BARBARA WHALEN, THE LONGEST DEBATE: A LEGISLATIVE

HISTORY OF THE 1964 CIVIL RIGHTS ACT 115–16 (1985). See generally Martha S. West, The Historical Roots of Affirmative Action, 10 LA RAZA L.J. 607, 611 n.13 (1998) (providing references that explain this unusual legislative history). 24. See Calleros, supra note 22, at 252–54. 25. Id. at 252–53. See generally Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458, 468–74 (2001) (describing second generation discrimination as a more “subtle and complex form of bias”). 26. See Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971) (recognizing that Title VII is “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes”).


intangibly discriminatory harassment based on race or sex.27 This second-generation conception of Title VII eventually was addressed by the Supreme Court’s 1986 decision in Meritor Savings Bank, FSB v. Vinson.28 In Meritor, the Court noted that lower courts and the EEOC had begun extending Title VII’s prohibition of discrimination to two types of discriminatory harassment: (1) harassment of tangible consequence, such as the demotion of an employee for refusing sexual advances, commonly referred to as “quid pro quo” harassment; and (2) harassment of no direct tangible consequence, often consisting of racist or sexist abuse, commonly referred to as “hostile environment” harassment.29

The issue in Meritor was the availability of Title VII relief for the latter type of discrimination, hostile environment harassment. The plaintiff in Meritor had worked for four years for the defendant and during that time received regular promotions.30 She alleged, however, that during those four years her supervisor repeatedly subjected her to unwelcome sexual advances, unwelcome fondling, and forcible rape.31 The defendant argued that the alleged misconduct fell outside Title VII’s purview; according to the defendant, Title VII’s prohibition of discrimination “with respect to . . . compensation, terms, conditions, or privileges of employment” is aimed at discrimination that results in an economically tangible loss.32

Rejecting this argument, the Meritor Court endorsed the second-generation trend to construe Title VII’s “terms [and] conditions” language as “not limited to economic or tangible discrimination” but instead as “strik[ing] at the entire spectrum of disparate treatment of men and women.”33 The Court

27. See Rogers v. EEOC, 454 F.2d 234, 237–38 (5th Cir. 1971) (first recognizing a hostile environment harassment prohibition in a case of race-based harassment); Compston v. Borden, Inc., 424 F. Supp. 157, 160–61 (S.D. Ohio 1976) (extending Title VII’s hostile environment prohibition to religious-based harassment); Cariddi v. Kan. City Chiefs Football Club, 568 F.2d 87, 88 (8th Cir. 1977) (extending the prohibition to harassment based on national origin); Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir. 1982) (extending the prohibition to sex-based harassment). See also 29 C.F.R. § 1604.11(a)(3) (2000). See generally CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF

WORKING WOMEN: A CASE OF SEX DISCRIMINATION (1979) (launching awareness of sexual harassment as a form of employment discrimination). 28. 477 U.S. 57 (1986). 29. Id. at 65. See also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998) (discussing early recognition of the distinction between quid pro quo and hostile environment harassment). 30. Meritor, 477 U.S. at 59–60. 31. Id. at 60. 32. Id. at 64 (internal quotation marks omitted). 33. Id. (internal quotation marks omitted). See also Faragher v. City of Boca Raton,


recognized that “Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult,”34 and held that Title VII is violated when the intimidation, ridicule, or insult is “sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.”35

Over the next twelve years, the Court decided two more cases that further elaborated on this intangible abuse threshold. In the first case, Harris v. Forklift Systems,36 decided in 1993, the Court evaluated the hostile environment claim of an employee who suffered primarily verbal taunts of a sexist nature from her workplace supervisor.37 Although the employee suffered no tangible harm,38 the Court determined that she alleged a triable case of discriminatory abuse actionable under Title VII.39 The Court defined discriminatory abuse as a “mathematically imprecise”40 threshold that is crossed when: (1) the victim “subjectively perceive[s] the [work] environment to be abusive”; and (2) the work environment appears “objectively . . . abusive” to a “reasonable person.”41 According to the Court, this test contemplates something more than “merely offensive” conduct, but not conduct so severe or pervasive as to cause any actual harm.42 Actionable conduct—that is, abuse—lies somewhere in

524 U.S. 775, 786 (1998) (endorsing this second-generation trend); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). 34. Meritor, 477 U.S. at 65. 35. Id. at 67 (internal quotation marks omitted) (alteration in original). See also Faragher, 524 U.S. at 786; Ellerth, 524 U.S. at 753–54; Oncale, 523 U.S. at 78; Harris, 510 U.S. at 21–22. 36. 510 U.S. 17 (1993). 37. Id. 510 U.S. at 18–19. The supervisor, the corporate defendant’s president, once told the employee she was “a dumb ass woman”; he subjected her to various disparaging remarks, such as “You’re a woman, what do you know”; he occasionally asked her to retrieve coins from his front pants pocket; and he made sexual remarks about her clothes. Id. at 19. 38. Albeit “a close case,” the district court dismissed it without a trial because the employee suffered no physical or psychological injury or interference with work performance. Id. at 20. 39. Id. at 22. 40. Id. (noting that discriminatory abuse “is not, and by its nature cannot be, a mathematically precise test”). 41. Id. at 21–22. See also Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (explaining that Title VII is not violated unless the offensive conduct creates an environment that is both objectively and subjectively offensive). 42. Harris, 510 U.S. at 21.


between—on some “middle path”43 to be determined through a case-by-case examination of “all the circumstances.”44

In a concurring opinion in Harris, Justice Scalia begrudgingly conceded that there was no alternative to the majority’s uncertain standard of discriminatory abuse in hostile environment cases.45 According to Justice Scalia, Title VII’s “inherently vague” prohibition of discriminatory “conditions of employment” ruled out any clearer test, such as a test of tangible impact on work performance.46 He thus lamented the inevitable upshot of Harris:

[T]oday’s holding lets virtually unguided juries decide whether sex-related conduct . . . is egregious enough to warrant an award of damages. One might say that what constitutes “negligence” (a traditional jury question) is not much more clear and certain than what constitutes “abusiveness.” Perhaps so. But the class of plaintiffs seeking to recover for negligence is limited to those who have suffered harm, whereas under [Title VII] “abusiveness” is to be the test of whether legal harm has been suffered, opening more expansive vistas of litigation.47

Despite his skepticism, Justice Scalia would reiterate Title VII’s inherently vague abuse threshold in early 1998 when he authored Oncale v. Sundowner Offshore Services, Inc.,48 the Court’s next opinion on the subject. Oncale presented a claim of hostile environment with an unusual twist: the question of whether Title VII is violated by “same-sex” harassment.49 The plaintiff, a man, alleged that other men in his workplace had subjected him to unwelcome sex-related behaviors and that he ultimately quit his job for fear of being raped by those men.50 Allowing the case to go forward, the Court held that Title VII can indeed apply to a case of same-sex harassment.51 According to the Court, the essential proofs are identical regardless of the sexes of

43. Id. 44. Id. at 23. These circumstances may include, but are not limited to, the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. See also Faragher, 524 U.S. at 787–88 (reiterating the circumstances listed in Harris). 45. See Harris, 510 U.S. at 24 (Scalia, J., concurring) (“I know of no alternatives to the course the Court today has taken.”). 46. Id. at 25 (Scalia, J., concurring). 47. Id. at 24 (Scalia, J., concurring). 48. 523 U.S. 75 (1998). 49. Id. at 76. 50. Id. at 77. 51. Id. at 79.


the victim and harasser.52 In every case, the victim must prove: (1) that he or she suffered unwelcome behavior, sexual or nonsexual, “because of” his or her status as a man or a woman;53 and (2) that the unwelcome behavior was “severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive.”54

As to the latter element—abusiveness—Justice Scalia’s opinion in Oncale demonstrated greater confidence in jurors than did his concurring opinion in Harris.55 Writing for the Court in Oncale, Justice Scalia noted: “Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing . . . and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”56 This observation highlights a two-realm universe of race- or sex-motivated workplace behavior: that which is “innocuous,” versus that which is “abusive.”57 Title VII, of course, generally reaches only the latter,58 and the line in between—left, as it is, to “[c]ommon sense, and an appropriate sensitivity to social context”59—is anything but clear.60

52. Id. at 80–81. 53. Id. Title VII’s “because of” requirement is met in harassment cases in either of the following two ways: (1) by targeted disparate treatment, i.e., verbal or physical abuse directed at a particular victim “because of” his or her race or sex; or (2) by generalized disparate impact, that is, non-directed conduct (such as racist or sexist wall decor) that causes persons of the victim’s race or sex disproportionate disadvantage “because of” their race or sex, though the disadvantage may not be specifically intended. See generally John H. Marks, Title VII’s Flight Beyond First Amendment Radar: A Yin-To-Yang Attenuation of “Speech” Incident to Discriminatory “Abuse” in the Workplace, 9 COLUM. J. GENDER & L. 1, 10–12 (1999). 54. Oncale, 523 U.S. at 81 (internal quotation marks and citations omitted). 55. Refer to note 47 supra and accompanying text. 56. Oncale, 523 U.S. at 82. 57. Id. at 81. See also Faragher v. City of Boca Raton, 524 U.S. 775, 786–87 (1998) (“Discourtesy or rudeness should not be confused with . . . harassment.” (internal quotation marks and citation omitted)). 58. See Oncale, 523 U.S. at 81 (emphasizing that Title VII “does not reach genuine but innocuous differences in the way men and women routinely interact with members of the same sex and of the opposite sex”). Nonabusive conduct, even if race- or sex-specific, is not actionable under Title VII absent an appreciable risk of prospective discriminatory abuse or harm. See John H. Marks, Title VII’s Flight Within First Amendment Radar: The Outer Cosmos of Employer Liability for Workplace Harassment Absent a Tangibly Discriminatory Employment Action, 25 U. DAYTON L. REV. 1, 31 (1999). 59. Oncale, 523 U.S. at 82. 60. See Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997) (concluding, from Justice Scalia’s concurring remarks in Harris, that “[t]here is no bright line between sexual harassment and merely unpleasant conduct”). This inherent uncertainty stems from the simple fact that alleged harassment scenarios “vary widely, as there is a continuum of sexually-categorized behavior ranging from the use of diminutives like ‘sweetie pie’ on one extreme to physical assault on the other, and the commingling of


B. The Scope of Employer Liability for Workplace Harassment: A Qualified Form of Vicarious Liability

Of the Court’s first three harassment cases, only in its 1986 decision in Meritor did the Court entertain the argument that the alleged harassment could not be imputed to the employer.61 The defendant-employer in Meritor argued that it was not responsible for alleged discriminatory abuse committed by a supervisory employee because the plaintiff-victim allegedly had failed, for four years, to use the defendant’s harassment complaint procedures or to otherwise put the defendant on notice of the supervisor’s abuse.62 The plaintiff, on the other hand, urged the Court to adopt a strict-liability standard in supervisory harassment cases based on a Title VII provision that defines an “employer” as including “any agent” of the employer.63

Given the procedural posture of the case, however, the Meritor Court declined to issue a definitive rule on the subject of employer liability for supervisory harassment.64 Instead, the Court offered only general guidelines to the trial court on r emand of the case. Title VII’s definition of an employer as including any agent, according to the Court, evinces not an intent to automatically equate agents and employers, but instead an intent to base employer liability primarily on common law principles of agency.65 The Court thus rejected any absolute rules

particular conduct, words and working environments may form a complex stew.” Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 n.8 (5th Cir. 1999). See generally Fall v. Indiana Univ. Bd. of Trustees, 12 F. Supp. 870, 877 (N.D. Ind. 1998) (discussing the “gray area” associated with a determination of whether conduct results in a hostile work environment). 61. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 70–72 (1986). In Harris, the alleged harasser was the corporate defendant’s president, who thus served as the corporate defendant’s proxy for purposes of Title VII liability. Faragher, 524 U.S. at 789. In Oncale, the employer knowingly permitted the alleged harassment to occur, notwithstanding the victim’s complaints to higher management. 523 U.S. at 77. See Faragher, 524 U.S. at 789 (“[C]ombined knowledge (of harassment) and inaction may be seen . . . as the employer’s adoption of the offending conduct.”). This sort of knowing indifference constitutes, at the very least, negligence on the employer’s part, which is a minimum standard of liability under Title VII. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998) (acknowledging that an employer can be liable even if a supervisor’s conduct is outside the scope of employment if the employer knew or should have known about the conduct and failed to stop it). Refer to notes 85–91 infra and accompanying text (discussing this minimum standard). 62. Meritor, 477 U.S. at 70. 63. Id. See 42 U.S.C. § 2000e(b) (1994). 64. Meritor, 477 U.S. at 72 (noting that the issue had a “rather abstract quality about it given the state of the record,” and remanding the case to determine whether any of the alleged abuse had even occurred). 65. Id. (agreeing with the EEOC that Congress wanted courts to look to agency principles for guidance). See also Ellerth, 524 U.S. at 754 (declaring that the Court will


in the area, as had been urged by the parties. The Court rejected an absolute immunity for employers who had no notice of the harassment, even when the plaintiff fails to use an available harassment complaint procedure.66 Conversely, the Court rejected a strict-liability standard for supervisory harassment.67 Specific details about employer liability for harassment—beyond the Court’s very general instruction, “look to agency principles”—were left for the lower courts to determine.68

After Meritor, lower courts diverged dramatically on the specific conditions for determining employer liability for supervisory hostile environment harassment.69 Some dabbled with various theories of vicarious liability.70 But most gravitated to a negligence standard that allowed an employer to avoid liability for supervisory harassment unless the employer knew or should have known of the supervisor’s harassment and failed to promptly remedy it.71 Under this standard, the plaintiff carried the burden of proving the employer’s negligence.72 turn “to principles of agency law, for the term ‘employer’ is defined under Title VII to include ‘agents’”). 66. Meritor, 477 U.S. at 72. See also Faragher, 524 U.S. at 792 (clarifying that “[under Meritor,] neither the existence of a company grievance procedure nor the absence of actual notice of the harassment . . . would result automatically in employer immunity”). 67. Meritor, 477 U.S. at 72. See also Faragher, 524 U.S. at 792 (explaining that the Meritor decision interpreted Title VII as placing some limitations on an employer’s responsibility for a supervisor’s discriminatory actions). 68. Meritor, 477 U.S. at 72–73 (remanding the case after concluding the Court of Appeals was wrong to entirely disregard agency principles). 69. Faragher, 524 U.S. at 785. Different approaches among the circuits arose out of a struggle to apply, as instructed by Meritor, common law agency principles in cases of hostile environment harassment committed by a supervisor. Id. See also Joanna L. Grossman, The First Bite is Free: Employer Liability for Sexual Harassment, 61 U. PITT. L. REV. 671, 677–78 (2000) (discussing “wildly inconsistent results” reached by post-Meritor lower courts). Beyond the context of hostile environment harassment committed by supervisors, however, almost all post-Meritor courts agreed on two things: (1) that strict liability should be the rule for quid pro quo harassment, see Ellerth, 524 U.S. at 752–53, 760; and (2) that negligence-based liability should be the rule for hostile environment harassment committed by low-level employees, see Faragher, 524 U.S. at 799. 70. See, e.g., Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994) (applying an aided-by-the-agency theory); Yates v. Avco Corp., 819 F.2d 630, 636 (6th Cir. 1987) (applying a scope-of-employment theory). 71. See, e.g., Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997); Pfau v. Reed, 125 F.3d 927, 936–37, 938 & n.5 (5th Cir. 1997); Callanan v. Runyun, 75 F.3d 1293, 1296 (8th Cir. 1996); Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 63 (2d Cir. 1992); Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990); Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987). See generally Justin S. Weddle, Title VII Sexual Harassment: Recognizing an Employer’s Non-Delegable Duty to Prevent a Hostile Workplace, 95 COLUM. L. REV. 724, 734 (1995) (discussing the “dominant standard in the lower courts” after Meritor—“the knew-or-should-have-known standard, which resembles a standard of negligence”). 72. Refer to cases cited in note 71 supra.


After the lower courts had struggled with the issue for twelve years, the Supreme Court, in mid-1998, finally decided “to address the divergence” among the circuits73 with two opinions issued on the same day. Both opinions, Burlington Industries, Inc. v. Ellerth74 and Faragher v. City of Boca Raton,75 identified as an analytic starting point a distinction between two types of cases: (1) a case of supervisory harassment that culminates in some tangible employment action, as might occur if a supervisor discharged or demoted a subordinate who objected to the supervisor’s unwelcome sexual advances; and (2) a case of supervisory harassment that does not culminate in a tangible employment action but nevertheless creates a hostile environment.76

The first category of cases, involving tangible employment actions, generally corresponds with the quid pro quo form of harassment.77 For this category of harassment, the Court determined that employer liability can be entirely vicarious; no amount of due care can insulate an employer from liability for a supervisor’s tangibly discriminatory employment actions.78 Underlying unqualified vicarious liability in these cases is a host of well-established agency theories that readily apply when a supervisor’s harassment culminates in a tangible act, such as firing or demoting an employee.79 Such culminating acts can trigger a theory of “proxy” or “merger” between the supervisor and the employer, a theory that the supervisor acted in the scope of his or her employment, a theory that the supervisor’s action was aided by the agency relation, or a combination of these theories.80

73. Faragher, 524 U.S. at 786. 74. 524 U.S. 742 (1998). 75. 524 U.S. 775 (1998). 76. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807–08. 77. See Ellerth, 524 U.S. at 753–54 (holding that a tangible employment action for refusing to submit to a supervisor’s sexual demands constitutes a change in the terms and conditions of employment actionable under Title VII). See also EEOC, ENFORCEMENT

GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT BY SUPERVISORS , at note 7 and accompanying text (June 21, 1999) [hereinafter EEOC ENFORCEMENT GUIDANCE] (“The conditions of employment are altered only if the harassment culminated in a tangible employment action or was sufficiently severe or pervasive to create a hostile work environment.”), available at http://www.eeoc.gov/ docs/harassment.html. 78. See Ellerth, 524 U.S. at 760–61 (noting the unanimity among Court of Appeals’ decisions finding vicarious liability “when a discriminatory act results in a tangible employment action”); Faragher, 524 U.S. at 790 (acknowledging this “apparently unanimous rule” of vicarious liability). 79. See Faragher, 524 U.S. at 790–91. 80. Id. The Court’s opinion in Ellerth seemed to suggest that the aided-by-the-agency theory is the most appropriate. See Ellerth, 524 U.S. at 759–63.


The second category of cases, involving intangible abuse, corresponds with the hostile environment form of harassment recognized as actionable in Meritor.81 For this category of harassment, the Faragher/Ellerth Court’s task was more difficult because the Court considered itself constrained by the conclusion in Meritor that, in hostile environment cases, Title VII places some limits on the potentially broad sweep of traditional agency principles.82 An exploration of these limits was thus necessary: in Faragher because the supervisory abuse, which consisted of a five-year pattern of various sexist antics and insults,83 never culminated in something like a discharge or demotion; and in Ellerth because the supervisory abuse, though imbued with the threat of something like a discharge or demotion, never culminated in any tangibly adverse employment action.84

The Court began the task of reconciling traditional agency principles with Title VII by evaluating two overarching grounds of liability set forth in section 219(2) of the Restatement (Second) of Agency:85 direct liability and vicarious liability.86 Direct liability, according to the Court, is an acceptable basis of employer liability in hostile environment cases if the harassment resulted from the employer’s own intentional, reckless, or negligent misconduct.87 The simplest cases of employer liability for intentional or reckless misconduct arise when the harasser himself is the employer or one of the employer’s high-ranking officials, that is, an official who acts as the employer’s “alter ego” or “proxy.”88 The employer himself or the employer’s high-

81. See Ellerth, 524 U.S. at 752–54 (noting that a hostile environment claim requires harassment that is “severe or persuasive”). See also EEOC ENFORCEMENT GUIDANCE, supra note 77. 82. As the Court observed in Faragher: “[W]e held [in Meritor] that Title VII placed some limit on employer responsibility for the creation of a discriminatory environment by a supervisor, and we held that Title VII does not make employers ‘always automatically liable for sexual harassment by their supervisors . . . .’” 524 U.S. at 792 (quoting Meritor, 477 U.S. at 72). See also Ellerth, 524 U.S. at 763–64 (“[A]gency principles constrain the imposition of vicarious liability in cases of supervisory harassment.”). 83. Faragher, 524 U.S. at 780–82. 84. Ellerth, 524 U.S. at 751. This hybrid type of supervisory misconduct—consisting of unfulfilled threats to take tangible action—falls within Title VII’s hostile environment prohibition, not its quid pro quo prohibition. Id. at 754. 85. Id. at 755 (stating that the Restatement is a “useful beginning point for a discussion of general agency principles,” but noting that those principles “‘may not be transferable in all their particulars’” (quoting Meritor, 477 U.S. at 72)); Faragher, 524 U.S. at 802 & n.3 (treating the Restatement as a “starting point,” but noting the need “to adapt agency concepts to the practical objectives of Title VII”). 86. Ellerth, 524 U.S. at 758–59 (directly quoting from, and then examining section by section, the Restatement’s rules of direct and vicarious liability). 87. Id. 88. Id. at 758; Faragher, 524 U.S. at 789.


ranking officials can also subject the employer to liability if the official acts negligently, for example, by unreasonably failing to discover and remedy harassment.89 As the Court explained, the negligence basis of liability applies even if the harasser is a low-level employee;90 as a “minimum” expectation, Title VII requires employers to take prompt remedial action when they know or should know of harassment in the workplace.91

The plaintiffs in Ellerth and Faragher, however, did not advance theories of direct employer liability. They instead pursued the “more stringent standard of vicarious liability.”92 Addressing this theory, the Court initially observed that vicarious liability, even in cases of purely hostile environment harassment, occasionally can be grounded on traditional scope-of-employment principles, as set forth in the Restatement, if the harasser’s conduct was “actuated . . . by a purpose to serve the employer.”93 This rare type of case might arise, for example, if a workplace supervisor harasses women because he thinks (perhaps mistakenly) that the employer wants to rid the workplace of women.94 But the facts of neither Faragher nor Ellerth fit this rare scope-of-employment paradigm. Before the Court, instead, was the more typical harassment paradigm: apparently personal acts of supervisors actuated by prurient sex-related interest or animus.95

89. Ellerth, 524 U.S. at 758–59. 90. Faragher, 524 U.S. at 799–80. 91. Ellerth, 524 U.S. at 759. 92. Id. 93. Id. at 756 (quoting RESTATEMENT (SECOND) OF AGENCY §§ 228(1)(c), 230 (1957)). 94. See Ellerth, 524 U.S. at 757 (citing Sims v. Montgomery County Comm’n, 766 F. Supp. 1052, 1075 (N.D. Ala. 1990)) (describing a supervisor found to be acting within the scope of employment “where employer [had] a policy of discouraging women from seeking advancement and ‘sexual harassment was simply a way of furthering that policy’”). 95. See Faragher, 524 U.S. at 799 (discussing a hypothetical “supervisor who, as here, expresses his sexual interests in ways having no apparent object whatever of serving an interest of the employer”). Given the prevalence of personally motivated harassers, the Court in Ellerth announced a “general rule . . . that sexual harassment by a supervisor is not conduct within the scope of employment.” Ellerth, 524 U.S. at 757. This conclusion, however, tends to conflict with the view that discriminatory harassment, whether or not personally motivated, is invariably a means to perpetuate workplace power disparities that have served employers over the years. Cf. Kathryn Abrams, The New Jurisprudence of Sexual Harassment, 83 CORNELL L. REV. 1169, 1219 (1998) (“Sexual harassment helps perpetuate the workplace as a site of male control, where gender hierarchy is the order of the day and masculine norms structure the working environment.”); Iman R. Soliman, Male Officers in Women’s Prisons: The Need for Segregation of Officers in Certain Positions, 10 TEX. J. WOMEN & L. 45, 63 & n.167 (2000) (identifying a similar structuring perpetuated in female prisons supervised by male guards who have a history of sexually harassing inmates).


As to this more typical realm, the Court turned to the aided-by-the-agency theory of vicarious liability, which is also endorsed by the Restatement.96 The Court observed that this theory offers “good reasons for vicarious liability”97—even for entirely intangible supervisory abuses actuated by personal factors—because an employer selects and trains its supervisory personnel, an employer confers upon supervisors a status imbued with a special capacity and opportunity to harass subordinates, and an employer can monitor supervisors more directly than lower-level personnel due to the more limited number of supervisors in any given workplace and their more direct accountability in the employer’s chain of command.98

The Court, however, expressed concern about transporting into Title VII an unqualified aided-by-the-agency standard in cases of intangible supervisory abuse. Averse to a standard that might contradict the holding in Meritor against imposing strict liability,99 the Court noted that in most cases of intangible abuse the supervisor is in some sense aided by the agency; invariably, supervisory status provides a captive group of subordinates especially susceptible to the supervisor’s abuse of power.100

Striking a balance between potentially expansive liability under agency principles and limits to liability suggested earlier by the Court’s Meritor decision, the Ellerth/Faragher Court accepted “vicarious liability” in all cases of supervisory hostile environment harassment, but subject to “an affirmative defense to liability or damages” if the harassment does not culminate in a tangible employment action.101 The affirmative defense “comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”102

96. Ellerth, 524 U.S. at 760; Faragher, 524 U.S. at 802. 97. Faragher, 524 U.S. at 804. 98. Id. at 802–03. 99. The Court deferred to its decision in Meritor to reject strict liability, noting that Meritor was of heightened precedential value because Congress had tacitly endorsed Meritor by amending Title VII without altering the Meritor holding. Faragher, 524 U.S. at 792, 804 & n.4. 100. Ellerth, 524 U.S. at 760. 101. Id. at 764–65; Faragher, 524 U.S. at 807. See Barna v. City of Cleveland, Nos. 96-3971, 96-4178, 97-4130, 1998 WL 939884, at *5 (6th Cir. Dec. 22, 1998) (construing Ellerth and Faragher as making an employer “strictly liable for workplace harassment by supervisors unless it can establish the affirmative defense”). 102. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.


The first prong of the Ellerth/Faragher defense (hereinafter, the “Ellerth defense”) requires proof of both preventive and corrective measures.103 Preventive measures typically consist of formalized anti-harassment policies and grievance procedures that include a harassment complaint mechanism.104 In Faragher, for example, the Court found, as a matter of law, that the employer’s proof of preventive measures was inadequate because the employer did not disseminate formalized anti-harassment policies and procedures to remote workplace areas where women were being harassed.105

Corrective measures, the other feature of the first prong of the Ellerth defense, typically take the form of prompt corrective action upon notice of harassment in the workplace.106 Recall that absence of notice, by itself, provided complete e mployer immunity according to many pre-Ellerth courts.107 Ellerth and Faragher thus delimit this previously separate avenue of defense by joining it with the preventive-measures feature of the first prong of the defense, and joining the first prong of the defense conjunctively with the second prong of the defense.108 The upshot of this delimitation in Ellerth itself was a reversal of summary judgment in favor of the employer even though the employer apparently neither knew nor should have known of the harassment.109

103. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807 (stating that an employer must prove that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” (emphasis added)). 104. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807 (“While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.”). 105. Faragher, 524 U.S. at 782, 808–09. 106. The corrective-measures feature of the defense, in effect, incorporates as a component of the defense the pre-Ellerth negligence basis of liability, but puts the burden of proof on the employer; that is, the employer must prove that it neither knew nor should have known about the harassment, or, if it did, that it took prompt remedial action. Refer to notes 66–72 supra and accompanying text (discussing the pre-Ellerth standard). 107. Refer to text accompanying note 71 supra. 108. The word “and” is used twice in the Court’s articulation of the defense, effectively creating three necessary elements to the defense: reasonable preventive measures on the employer’s part, reasonable corrective action by the employer upon notice, and an unreasonable failure to avoid harm on the plaintiff-employee’s part. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. 109. The trial court in Ellerth determined that the employer neither knew nor should have known of the supervisor’s harassment, and that the plaintiff had failed to lodge any complaint with the employer despite her awareness of the employer’s harassment complaint procedures. 524 U.S. at 748–49. See also id. at 771 (Thomas, J., dissenting) (“[T]here is no question that [the employer] acted reasonably under the circumstances.”). On appeal, the Supreme Court thus framed the issue in terms of “whether . . . an


The second prong of the defense adds to the employer’s burden of proof. In addition to proving diligence in preventing and correcting harassment, the employer must further prove that the plaintiff negligently allowed harassment to occur. In other words, it is not enough for an employer to prove it acted reasonably to combat supervisory harassment; the employer must also show that the plaintiff unreasonably failed to avoid the supervisor’s harassment by failing to take advantage of the employer’s preventive and corrective measures or some other reasonable avenue of harm avoidance.110 This harm-avoidance prong of the defense incorporates into hostile environment analysis the tort doctrine of “avoidable consequences.”111 Under this doctrine, the employer’s task is one of causal apportionment.112 To fully avoid liability, the employer must prove that the plaintiff unreasonably failed to avoid all harm; otherwise, the doctrine of avoidable consequences allows imposition of liability, subject only to “mitigation” of damages that the plaintiff unreasonably failed to avoid.113 employee [who asserts a hostile environment claim] yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the [harassing] supervisor’s actions.” Id. at 746–47. The Court answered this question in the affirmative, concluding that the trial court had improperly granted the employer’s motion for summary judgment. Id. at 766. 110. Refer to note 108 supra (noting use of the word “and” in the joint Ellerth/Faragher holding). 111. As the Court observed in Ellerth, “Title VII borrows from tort law the avoidable consequences doctrine . . . .” 524 U.S. at 764. See also Faragher, 524 U.S. at 806 (“The requirement to show that the employee has failed in a coordinate duty to avoid or mitigate harm reflects . . . [a] policy imported from the general theory of damages, that a victim has a duty to use such means as are reasonable under the circumstances to avoid or minimize the damages that result from violations of the statute.”) (internal quotation marks omitted). 112. DAN B. DOBBS, THE LAW OF TORTS 511 (2000). The avoidable consequences doctrine denies recovery of tortiously inflicted damages that the plaintiff should have avoided by exercising reasonable care. Id. at 510. The doctrine applies in tort cases to both post-accident failures to mitigate harm (e.g., exacerbating an injury by unreasonably refusing medical treatment) and pre-accident failures to take advanced precautions (e.g., exacerbating the effects of a boating accident by failing to wear a life vest). Id. at 510, 516. Underlying the doctrine is a rule of “causal apportionment, in contrast to the rule of fault apportionment applied in comparative fault cases.” Id. at 511. If an item of damage is causally allocable to the plaintiff’s failure to exercise reasonable care (e.g., drowning because of a failure to wear a life vest), that item of damage is entirely removed from the calculation of damages and is not subject to any fault-based apportionment. See id. at 510–11 (describing a typical damage calculation under the avoidable consequences doctrine). 113. The Court recognized this rule of causal-apportionment as follows:

If the plaintiff unreasonably failed to avail herself of the employer’s preventive or remedial apparatus, she should not recover damages that could have been avoided if she had done so. If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable


To be sure, the Court’s conjunctive formulation of the affirmative defense requires the employer to prove both diligence on its part in combating harassment and negligence on the plaintiff’s part in allowing harassment to occur.114 Indeed, the majority in Ellerth and Faragher advanced this conjunctive framework over a dissenting opinion that objected to holding a diligent employer liable when the plaintiff acted reasonably but nevertheless suffered harm.115 The Court’s majority thus fashioned a composite defense that plainly carves out a real, albeit limited, range of “vicarious” liability: specifically, a range of employer liability without fault for damages that the plaintiff could not have reasonably avoided.116 The underlying objective seems to be one of encouraging preventive action by both the employer and employee,117 while maintaining Title VII’s compensatory agenda for harms that cannot be avoided through reasonable care.118

This reading of the Court’s new brand of vicarious liability follows inexorably from the inquiries demanded by Ellerth and Faragher. As explained thus far, those inquiries are threefold:

(1) Did the employer act reasonably to prevent and correct workplace harassment?

(2) Did the plaintiff unreasonably fail to use the employer’s preventive and corrective measures or otherwise avoid harm?

(3) If the plaintiff unreasonably failed to avoid harm, is the employer entitled to complete liability avoidance, or just reduced damages? That is, would the reasonable person have avoided all harm, or just some harm?

employer should reward a plaintiff for what her own efforts could have avoided.

Faragher, 524 U.S. at 806–07. 114. Refer to Part IV.A infra (explaining why the word “and” between the two prongs of the defense really means “and”). 115. Ellerth, 524 U.S. at 773 (Thomas, J., dissenting). Refer to notes 225–27 infra and accompanying text (discussing Justice Thomas’s dissenting opinion and the majority’s response). 116. Stated conversely, the composite defense “appears to be an effort by the Supreme Court to define a limited universe of cases in which employers will not be held strictly liable, on a vicarious basis.” Moore v. Sam’s Club, 55 F. Supp. 2d 177, 193 (S.D.N.Y. 1999) (emphasis added). 117. Ellerth, 524 U.S. at 764; Faragher, 524 U.S. at 805–06. Refer to note 232 infra and accompanying text (discussing Title VII’s “twin deterrent goals”). 118. See Faragher, 524 U.S. at 805 (“Title VII seeks to make persons whole for injuries suffered on account of unlawful employment discrimination.”) (internal quotation marks omitted). Refer to text accompanying notes 231–34 infra (discussing the interplay between Title VII’s compensatory aim and its twin deterrence goals).


To fully escape liability, the employer must carry its burden of proof on all three of these questions—not just the first, nor just the first and second. Given this burden of proof, and the many “reasonableness” inquiries to which that burden applies, one might think that, in the wake of Ellerth and Faragher, summary judgment would become a very difficult stage for employers to entirely defeat vicarious liability.119 That expectation, however, has simply not been fulfilled. The next section explains this post-Ellerth development.

III. A DUBIOUS SAFE HARBOR DEVELOPING AMONG POST-ELLERTH LOWER COURTS WHEN DECIDING EMPLOYER MOTIONS

FOR SUMMARY JUDGMENT

Nowhere in the Faragher or Ellerth opinions did the Supreme Court even intimate that the defense to vicarious liability would routinely result in summary disposition of harassment claims in favor of employers.120 But that is the emerging result of the defense among post-Ellerth lower courts.121 These courts have effectively construed the defense as

119. Four months after the Supreme Court handed down the new vicarious liability framework, one appellate judge observed: “If Faragher and Ellerth signal anything, it is that fewer sexual harassment cases will be resolved on summary judgment.” Lissau v. S. Food Serv., Inc., 159 F.3d 177, 184 (4th Cir. 1998) (Michael, J., concurring in part). See also Paul Buchanan & Courtney W. Wiswall, The Evolving Understanding of Workplace Harassment and Employer Liability: Implications of Recent Supreme Court Decisions Under Title VII, 34 WAKE FOREST L. REV. 55, 64 (1999) (explaining that Ellerth and Faragher “may make it more difficult for an employer to obtain summary judgment”); David Sherwyn et al., Don’t Train Your Employees and Cancel Your “1-800” Harassment Hotline: An Empirical Examination and Correction of the Flaws in the Affirmative Defense to Sexual Harassment Charges, 69 FORDHAM L. REV. 1265, 1268, 1274 (2001) (discussing early predictions by commentators that employers would lose summary judgment motions); Note, Notice in Hostile Environment Discrimination Law , 112 HARV. L. REV. 1977, 1994 (1999) (explaining that Ellerth-required reasonableness judgments “are better suited to jury determination than to summary judgment”). Cf. Williams v. Gen. Motors Corp., 187 F.3d 553, 567 (6th Cir. 1999) (noting “[t]he Supreme Court’s recent expansion of employer liability for harassment by a supervisor . . . and the importance of careful factfinding with regard to the raising of the affirmative defense”); Steven M. Warshawsky, Ellerth and Faragher: Towards Strict Employer Liability Under Title VII for Supervisory Sexual Harassment, 2 U. PA. J. LAB. & EMP. L. 303, 303 (1999) (suggesting that “the Court’s decisions in Ellerth and Faragher move far towards adopting a rule of strict employer liability”). Indeed, this view seems to be shared by the judge who summarily dismissed Paula Jones’s harassment case against President Clinton. See Susan Webber Wright, Uncertainties in the Law of Sexual Harassment, 33 U. RICH. L. REV. 11, 19 (1999) (stating that the Ellerth/Faragher reasonableness inquiries make it “possible that courts will be granting motions for summary judgment less often”). 120. Lissau, 159 F.3d at 184 (Michael, J., concurring in part) (observing that the Ellerth defense incorporates many fact-sensitive questions about the reasonableness of the parties, and thus that “[n]owhere does the Supreme Court suggest summary judgment as a shortcut in dealing with this new defense”). 121. A recent study of the defense’s application on summary judgment reveals that


providing a summary judgment safe harbor against claims of supervisor harassment.122

As explained in the following subsections, this safe harbor was created by two lines of post-Ellerth cases: (a) a line of cases that disregarded the conjunctive formulation of the Ellerth defense, thus treating employer diligence under the first prong of the defense, alone, as an independent shield against liability; and (b) a line of cases that disregarded the principle of causal apportionment underlying the second prong of the defense, thus treating any negligence on the plaintiff’s part as necessarily barring all recovery.

A. The Diligent-Employer Line of Cases: Resurrecting an Independent Defense Based on Prompt Remedial Action Upon Notice of Harassment

The first line of cases largely rejects the second prong of the Ellerth defense and, in effect, returns the question of employer liability to the pre-Ellerth negligence-based rule.123 This backwards movement, which is most common in cases of rapid-onset or single-incident hostile environment harassment,124 apparently began with Indest v. Freeman Decorating, Inc.,125 a one-judge plurality opinion of the Court of Appeals for the Fifth Circuit.126 The supervisory misconduct in Indest consisted of

employers are prevailing at a rate of fifty-three percent. Sherwyn, supra note 119, at 1279, 1280, 1281. Refer to cases discussed in Part III.A infra and cases cited in note 184 infra (noting examples of cases granting or affirming summary judgment in favor of the employer). 122. One commentator aptly explains the irony of this safe harbor, as follows:

Many commentators interpreted the new standards [announced in Ellerth and Faragher] as a blow to employers based on the perception that employers would now be held accountable for workplace harassment without regard to their culpability. . . . [T]he conventional wisdom with respect to Ellerth and Faragher is dead wrong. [Subsequent] 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.

Grossman, supra note 69, at 675. Refer to note 207 infra (noting the observation among other commentators that post-Ellerth courts are treating the defense as a shortcut to summary dismissal). 123. Refer to notes 71–72 supra and accompanying text (discussing the pre-Ellerth negligence-based rule). 124. A single incident of sex- or race-specific misconduct, if severe, can cross the abuse threshold and, by itself, create an actionable hostile environment. Refer to note 211 infra and accompanying text. 125. 164 F.3d 258 (5th Cir. 1999). 126. Indest was decided by a three-judge panel: a judge who authored the opinion of the court, released on January 19, 1999; a judge who merely concurred with the result of


about five incidents of unwelcome sexual comments and gestures that occurred over a few days.127 A few days after the last incident, the plaintiff-victim complained to her employer, and the employer promptly intervened to stop the misconduct.128

The Indest court was willing to assume that the short burst of misconduct did indeed create a hostile environment,129 albeit an “incipient hostile environment.”130 Furthermore, the court acknowledged that the plaintiff had “quickly resorted to [the employer’s] policy and grievance procedure against sexual harassment.”131 Thus, there was no question that the employer could not establish the second prong of the Ellerth defense, which is met only if the plaintiff unreasonably delayed complaining.132 The court, however, decided that the second prong of the defense “does not control” in a case of sudden and unavoidable exposure to a hostile environment,133 distinguishing Ellerth and Faragher on the grounds that those cases involved “longstanding supervisor misbehavior” that the plaintiffs had not promptly complained about.134 Only on those facts, according to the Indest court, does it make sense to consider the reasonableness of a plaintiff’s non-reaction to the harassment because “the plaintiff’s failure or delay . . . may suggest that a company lacked vigilance.”135 The court thus affirmed summary judgment for the employer, concluding: “Even if a hostile work environment claim had been stated . . . [the employer’s] prompt remedial response

the January opinion; and a judge who authored a specially concurring opinion, released on February 26, 1999, to expressly disagree with the reasoning of the January opinion. See Indest v. Freeman Decorating, Inc., 168 F.3d 795, 796 & n.1 (5th Cir. 1999) (Weiner, J., concurring) (explaining that neither the January opinion nor the February opinion is precedent in the Fifth Circuit). Refer to notes 238–42 infra and accompanying text for a discussion of the February opinion. 127. Indest, 164 F.3d at 260. 128. Id. at 260–61, 265. 129. See id. at 265. 130. Id. 131. Id. 132. Refer to note 102 supra and accompanying text. 133. See Indest, 164 F.3d at 265. 134. Id. See also Kathleen A. Lieder & Christopher P. Mazzoli, Ellerth and Faragher: Applying the Supreme Court’s “Delphic Pronouncements” on Employers’ Vicarious Liability for Sexual Harassment, 78 MICH. B.J. 432, 435 (1999) (suggesting that the Supreme Court “did not address” the pre-Ellerth rule allowing employers to escape liability by taking prompt remedial action upon notice); Joy Sabino Mullane, Employer Liability for Hostile Environment Sexual Harassment Created by Supervisors Under Title VII: Towards a Clearer Standard?, 51 FLA. L. REV. 559, 580–81 (1999) (suggesting that the Supreme Court left unanswered the question whether both prongs of the defense really apply when the plaintiff promptly complains but is nevertheless injured). 135. Indest, 164 F.3d at 266.


relieves it of Title VII vicarious liability.”136 This “modified” reading of Ellerth and Faragher, which essentially reduces the defense solely to its first prong in rapid-onset cases,137 is intended to reward diligent employers who have promptly “nipped a hostile environment in the bud”138—at an “incipient”139 stage.

Since Indest was decided, the modified defense has taken on a life of its own, extending well beyond cases of merely incipient hostile environments. For example, the Court of Appeals for the Fourth Circuit, in Watkins v. Professional Security Bureau Ltd.,140 construed the modified defense to negate employer liability, as a matter of law, for a hostile environment created by a sudden, forcible rape that the plaintiff-victim undisputedly could not have avoided.141 To be sure, there is nothing incipient about the hostile environment created by a forcible rape; as the Watkins court acknowledged, a single incident of outright sexual assault can give rise to a full-blown hostile environment immediately.142 Nor is there any way a reasonable person can avoid such a rapidly imposed hostile environment, when such an environment comes without any forewarning.143 Yet the court in Watkins, rejecting a jury verdict for the plaintiff, stated that the employer was entitled to complete liability avoidance based solely on the first prong of the Ellerth defense; according to the court, the employer insulated itself from liability because it had adopted formalized anti-harassment policies and had promptly responded to the employee’s complaint about the rape.144 Citing Indest, the court explained:

136. Id. at 267. The court expressed some doubt about whether a hostile environment had been created at all, but ultimately decided not to address this question. Id. at 264, 267. 137. See Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1025–26 (10th Cir. 2001) (rejecting the “modified employer defense enunciated in Indest,” which holds “that an employer’s prompt corrective action can be sufficient by itself to avoid vicarious liability under Title VII for sexual harassment committed by a supervisory employee”). 138. Indest, 164 F.3d at 266. 139. Id. at 265. 140. 201 F.3d 439 (4th Cir. 1999) (per curiam) (unpublished table decision). The full text of the opinion is available at Walkins v. Prof’l Sec. Bureau Ltd., No. 98-2555, 1999 WL 1032614 (4th Cir. 1999) (per curiam). 141. Id. at *1, *5 n.13 (noting that even the employer did “not assert that [the plaintiff] failed to take appropriate action to avoid being attacked”). 142. See id. at *3 (citing Tomka v. Seiler Corp ., 66 F.3d 1295, 1305 (2d Cir. 1995), to explain that a single incident of sexual assault “sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment”). Refer to note 211 infra and accompanying text (discussing single-incident hostile environment harassment). 143. Indeed, the court in Watkins acknowledged that there was no dispute regarding whether the plaintiff-victim in the case before it was in any sense responsible for the rape. Watkins, 1999 WL 1032614, at *5 n.13. 144. Id. at *4. To be sure, the Watkins court’s reliance on the Indest-type defense was


[W]e cannot conceive that an employer that satisfies the first element of the affirmative defense and that promptly and adequately responds to a reported incident of sexual harassment—as [the employer] did here . . .—would be held liable for the harassment on the basis of an inability to satisfy the literal terms of the second element of the affirmative defense.145

Concern for employers who cannot establish the second prong of the defense was also echoed by the Court of Appeals for the Eighth Circuit in Todd v. Ortho Biotech, Inc.,146 another post-Ellerth case involving a sudden and unavoidable supervisory sexual assault.147 The employer in Todd had taken prompt remedial action after learning of the assault,148 but apparently the employer could not prove that the plaintiff-victim was in any way negligent in failing to avoid the assault.149 Citing Indest, the court in Todd expressed concern that the Ellerth defense “may not protect an employer from automatic liability in cases of single, severe, unanticipatable sexual harassment.”150 This prospect of purportedly automatic liability151 truly bothered the Todd court; indeed, the court remanded the case to the trial court to consider the question whether the Meritor Court’s expressed aversion to automatic liability, as reiterated in Ellerth and Faragher,152 impliedly abolished liability for single-incident harassment altogether.153

an alternative rationale. The court further determined that the second prong of the affirmative defense was established because the plaintiff, after suffering the unavoidable rape, communicated a complaint to the wrong person in the employer’s chain of command. See id. at *5. This effort to characterize the plaintiff’s post-rape conduct as unreasonable is discussed below. Refer to notes 194–99 infra and accompanying text (challenging the logic of treating the plaintiff’s post-rape negligence as a complete bar to recovery rather than as a basis for mitigation of post-rape damages). 145. Watkins, 1999 WL 1032614, at *5 n.16. 146. 175 F.3d 595 (8th Cir. 1999). 147. Id. at 597. 148. Id. 149. The employer had previously prevailed under the pre-Ellerth standard that treated employer diligence, alone, as a basis for complete liability avoidance. Id. That result, however, was vacated by the Supreme Court in light of its decisions in Ellerth and Faragher. Id. On remand, the employer argued that the Ellerth standard did not apply, apparently because the employer could foresee difficulty establishing the second prong of the defense—that is, that, in addition to the employer’s diligent efforts to combat harassment, the plaintiff unreasonably failed to avoid harm. See id. 150. Id. at 598. 151. The phrase “automatic liability,” as used in this context, presupposes: (1) the harasser’s status as a supervisor; (2) the harasser’s misconduct being aided by his supervisory status; and (3) the employer’s inability to establish the two-pronged affirmative defense. Refer to notes 102 supra and 235 infra and accompanying text. 152. Refer to notes 67, 82, and 99 supra and accompanying text. 153. Todd, 175 F.3d at 598.


Judge Arnold, a concurring judge in Todd, sharply criticized this highly pro-employer gloss on Ellerth and Faragher, and would have remanded the case for straightforward application of both prongs of the Ellerth defense.154 Judge Arnold had “no doubt that a single severe act of sexual harassment [could] amount to a hostile work environment actionable under Title VII,”155 and he saw “nothing in Ellerth or Faragher to negative this proposition.”156 Elaborating on the avoidable consequences feature of the second prong of the defense, he further explained why purportedly “automatic” employer liability in single-incident cases is entirely consistent with Ellerth and Faragher:

The affirmative defense . . . is not always a complete defense to liability. It can also be a defense to damages only. . . . If a supervisor abuses his authority to commit a sufficiently severe act of harassment, the employer’s affirmative defense, if established, should serve to reduce the damages [for subsequent harms not avoided], but I don’t understand why it should always erase the tort completely.157

The EEOC takes the same position, explaining that if a supervisor’s misconduct causes immediate harm and the employee promptly complains, “corrective action by the employer could prevent further harm but might not correct the actionable harm that the employee already had suffered. . . . In these circumstances, the employer will be liable because the defense requires proof that it exercised reasonable legal care and that the employee unreasonably failed to avoid the harm.”158

Some lower courts, however, continue to resist such straightforward application of the Supreme Court’s conjunctively framed two-pronged defense. Indeed, one district court, following the Todd majority, has opined that the “and” between the two prongs of the defense really means “or,” thus setting apart the first prong of the defense as an independent basis of employer immunity that necessarily erases liability entirely.159 Similarly, a concurring judge in an Eighth Circuit opinion has asserted that

154. See id. at 599 (Arnold, J., concurring). 155. Id. (Arnold, J., concurring). The weight of authority supports this view. Refer to note 211 infra and accompanying text. 156. Todd, 175 F.3d at 599 (Arnold, J., concurring). 157. Id. (Arnold, J., concurring). 158. EEOC ENFORCEMENT GUIDANCE, supra note 77, at text accompanying note 47–48 (emphasis added). 159. After quoting the two-pronged Ellerth defense in full, the district court stated: “Although the quote uses the conjunctive ‘and,’ it appears from the surrounding discussion that either of these elements can be proved in order to establish the defense.” Keefer v. Universal Forest Prods., Inc., 73 F. Supp. 2d 1053, 1055 n.2 (W.D. Mo. 1999).


“a prompt response by an [employer’s] authorized agent to halt reported harassment is sufficient to relieve the employer of liability under Title VII . . . .”160

Remarkably, the purportedly distinguishing feature emphasized in cases like Indest, Watkins, and Todd—rapid-onset harassment161—may not even be a necessary condition to this post-Ellerth trend of disregarding the second prong of the Ellerth defense. In Jaudon v. Elder Health, Inc.,162 the court, while considering an employer’s motion for summary judgment, assumed that the plaintiff-victim’s supervisor in fact created a hostile environment with a prolonged pattern of repeated abuses.163 Then, after finding that the employer established the first prong of the defense,164 the court held that the second prong of the Ellerth defense “[did] not have any practical application.”165 Relying directly on Indest and Watkins, the Jaudon court decided, as a matter of law, that vicarious liability is also entirely erased in gradual-onset harassment cases, as long as the employer promulgated anti-harassment policies and responded promptly once on notice of the harassment.166

B. The Dilatory-Plaintiff Line of Cases: Resurrecting the Anachronistic Defense of Contributory Negligence

The second line of post-Ellerth cases generally has emerged from the scenario described in Indest as meriting application of the second prong of the defense: gradual-onset harassment that the plaintiff delays complaining about.167 In these cases, post-

160. Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1369 (11th Cir. 1999) (Barkett, J., concurring). 161. Refer to notes 133–35 supra and accompanying text. 162. 125 F. Supp. 2d 153 (D. Md. 2000). 163. Id. at 157–60. 164. Id. at 163–64. 165. Id. at 164. 166. See id. The Jaudon analysis sharply contrasts with the analysis of another district court in Moore v. Sam’s Club, 55 F. Supp. 2d 177 (S.D.N.Y. 1999). In Moore, the plaintiff alleged a pattern of supervisory harassment that occurred at the end of March or early April. Id. at 179–85. She reported the harassment to the defendant-employer on April 25, and the employer promptly remedied the situation. Id. at 179, 192. Considering a motion for summary judgment, the court found that the employer’s prompt response, coupled with adequate anti-harassment policies, established the first prong of the Ellerth defense. Id. at 191–92. But the court ultimately rejected the defense for failure of proof on the second prong because the employee had promptly complained and thus could not be found to have acted unreasonably. Id. at 192–93. Giving straightforward application to both prongs, the court recognized a range of truly “vicarious” liability when both parties act reasonably. See id. at 193–94. 167. Refer to notes 129–35 supra and accompanying text (describing the basis of the Indest court’s decision).


Ellerth courts, on employer motions for summary judgment, typically find these delays to be unreasonable as a matter of law,168 then typically treat these purportedly unreasonable delays as something akin to contributory negligence—a complete bar to recovery.169 The rate of complete dismissal on summary judgment is indeed remarkable in this category of cases. One study shows a one hundred percent rate of summary dismissal when employees fail to use reasonably adequate complaint procedures provided by the employer.170 Routine dismissal in these fail-to-avail cases, and in delayed availment cases, usually occurs without any discussion of the avoidable consequences doctrine underlying the second prong of the Ellerth defense,171 notwithstanding the Supreme Court’s plain instruction that at least some dilatory plaintiffs may recover damages for any initial harm that could not have been avoided through reasonable care.172

Before examining this category of cases more closely, the significance of the procedural stage for these complete dismissals—summary judgment173—deserves preliminary

168. Based on a statistical study of post-Ellerth summary judgment cases, one group of commentators explains that “courts [have] found employees to be unreasonable in any instance where the employer satisfied the first prong [of the Ellerth defense] and the employees failed to report harassment. Based on this fact, it seems that failure to report is tantamount to per se ‘unreasonable’ behavior.” Sherwyn, supra note 119, at 1290. See also Grossman, supra note 69, at 700–02 (discussing post-Ellerth courts’ “hard line” against plaintiffs who do not report). 169. In state tort actions for negligence, a plaintiff’s contributory negligence used to be a complete defense to liability. Refer to note 248 infra (discussing this prior rule and its successor rule of comparative fault). 170. Sherwyn, supra note 119, at 1286. 171. Refer to note 188 infra (citing cases in which post-Ellerth lower courts routinely granted or affirmed summary judgment and complete dismissal in favor of diligent employers sued by dilatory employees without considering whether a reasonable person would have avoided all harm). 172. As noted above, the Supreme Court plainly stated, “If the plaintiff unreasonably failed to avail herself of the employer’s preventive or remedial apparatus, she should not recover damages that could have been avoided if she had done so.” Refer to note 113 supra (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 806–07 (1998) (emphasis added)). The corollary to this rule, of course, is that the dilatory plaintiff should recover damages that could not have been avoided with reasonable care. But the corollary is largely ignored by post-Ellerth courts. See Grossman, supra note 69, at 676 (observing that the Supreme Court’s distinction between complete liability avoidance and partial damages avoidance “has been obliterated by trial and appellate courts interpreting the affirmative defense who have held—expressly or impliedly—that it always operates to eliminate liability”); refer to notes 184–99 infra and accompanying text (discussing post-Ellerth courts’ typical refusal to award damages to the dilatory plaintiff even for initially unavoidable harm). 173. See Sherwyn, supra note 119, at 1266 (focusing exclusively on published post-Ellerth opinions addressing employer motions for summary judgment); refer to note 184 infra and accompanying text (focusing on the vast majority of post-Ellerth opinions in which lower courts granted or affirmed summary judgment for employers).


comment because, as observed above, the Ellerth/Faragher framework seemingly creates a substantial summary judgment burden for employers seeking complete liability avoidance.174 The substantiality of this burden is illustrated by Greene v. Dalton,175 a rare post-Ellerth opinion that actually took the Supreme Court at its word.

In Greene, the plaintiff, a former Navy employee, alleged that her immediate supervisor subjected her to an eleven-day pattern of unwelcome sexual discussions, sexual advances, and ultimately, a sexual assault.176 The plaintiff waited thirty-four days after the last incident to report the situation to a Navy EEO officer.177 Based on this delay and the “rigor with which the Navy enforces its strict anti-harassment policy,” the Navy sought affirmance of a full summary judgment granted by the district court.178 The appellate court, however, rejected the Navy’s argument on the second prong of the defense.179 Relying directly on the Supreme Court’s express instruction to apply the avoidable consequences doctrine, the court in Greene explained that the second prong “is not intended to punish the plaintiff merely for being dilatory. Rather, it ‘reflects an . . . obvious policy imported from the general theory of damages,’ namely, that the victim has a duty to mitigate her damages.”180 Accordingly, the court decided that complete liability avoidance would require the Navy to prove “not merely that [the plaintiff] inexcusably delayed reporting . . . but that, as a matter of law, a reasonable person in [the plaintiff’s] place would have come forward early enough to prevent [the supervisor’s] harassment from becoming severe or pervasive.”181 The Navy failed to meet this burden because it established “neither the point at which [the supervisor’s] harassment became severe or pervasive nor when a reasonable person would have reported his behavior.”182 These two questions—the timing of the hostile environment and, in relation to its point of accrual, the timing of the reasonable person’s response to it—had to be resolved by a jury.183

174. Refer to note 119 supra and accompanying text (indicating early predictions that the Ellerth/Faragher framework would make employer summary judgment more difficult to obtain). 175. 164 F.3d 671 (D.C. Cir. 1999). 176. Id. at 673. 177. Id. 178. Id. at 673–74. 179. Id. at 674. 180. Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998)). 181. Id. at 675. 182. Id. 183. See id.


Without ever considering either of these questions, however, the vast majority of other post-Ellerth lower courts routinely grant or affirm summary judgment and complete dismissal in favor of diligent employers who have been sued by purportedly dilatory plaintiffs.184 Although cases in this line generally do not involve culminating assaults, the facts presented are otherwise indistinguishable from those in Greene.185 Plaintiffs in this line of cases, like the plaintiff in Greene, generally allege a prolonged pattern of mistreatment,186 but their cases are weakened, as was

184. See, e.g., Leopold v. Baccarat, Inc., 239 F.3d 243 (2d Cir. 2001); Hill v. Am. Gen. Fin., Inc., 218 F.3d 639 (7th Cir. 2000); Casiano v. AT&T Corp., 213 F.3d 278 (5th Cir. 2000); Madray v. Publix Supermkts., Inc., 208 F.3d 1290 (11th Cir. 2000); Leugers v. Pinkerton Sec. & Investigative Servs., No. 98-3501, 2000 WL 191685 (6th Cir. Feb. 3, 2000); Ritchie v. Stamler Corp., No. 98-5750, 2000 WL 84461 (6th Cir. Jan. 12, 2000); Montero v. AGCO Corp., 192 F.3d 856 (9th Cir. 1999); Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999); Shaw v. Autozone, Inc., 180 F.3d 806 (7th Cir. 1999); Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969 (5th Cir. 1999); Swingle v. Henderson, No. 99-1826(DRD), 2001 WL 483317 (D. N.J. May 8, 2001); Childress v. PetsMart, Inc., 104 F. Supp. 2d 705 (W.D. Tex. 2000); Morris v. Southeastern Pa. Transp. Auth., No. Civ.A. 98-3414, 1999 WL 820457 (E.D. Pa. Sept. 28, 1999), aff’d, 216 F.3d 1076 (3d Cir. 2000); Schoiber v. Emro Mktg. Co., No. 95 C 5726, 1999 WL 825275 (N.D. Ill. Sept. 21, 1999); Alberter v. McDonald’s Corp., 70 F. Supp. 2d 1138 (D. Nev. 1999); EEOC v. Barton Protective Servs., Inc., 47 F. Supp. 2d 57 (D.D.C. 1999); Dedner v. Oklahoma, 42 F. Supp. 2d 1254 (E.D. Okla. 1999); Maddin v. GTE of Florida, Inc., 33 F. Supp. 2d 1027 (M.D. Fla. 1999); Jones v. USA Petroleum Corp., 20 F. Supp. 2d 1379 (S.D. Ga. 1998); Duran v. Flagstar Corp., 17 F. Supp. 2d 1195 (D. Colo. 1998); Fierro v. Saks Fifth Ave., 13 F. Supp. 2d 481 (S.D.N.Y. 1998); Sconce v. Tandy Corp., 9 F. Supp. 2d 773 (W.D. Ky. 1998); see also Lissau v. S. Food. Serv., Inc., 159 F.3d 177, 182 & n.* (4th Cir. 1998) (remanding for renewed motion for summary judgment, despite concurring judge’s admonition “that ‘Faragher and Ellerth signal . . . that fewer sexual harassment cases will be resolved on summary judgment’”); Phillips v. Taco Bell Corp., 83 F. Supp. 2d 1029, 1034 (E.D. Mo. 2000) (completely exonerating defendant based in part on plaintiff’s three-month delay in reporting harassment, and making no finding as to when work environment became hostile nor when a reasonable person would have reported). 185. Even absent the culminating assault on the eleventh day of mistreatment, the same questions of causal apportionment would have been raised in Greene: (1) when did the hostile environment accrue; and (2) when would the reasonable person have complained, before or after that point of accrual? Refer to notes 268–82 infra and accompanying text. 186. See, e.g., Leopold, 239 F.3d at 244 (alleging repeated sexist comments and threats to fire); Hill, 218 F.3d at 641 (alleging a months-long pattern of sexual and racial harassment); Casiano, 213 F.3d at 285 (alleging that, on at least fifteen separate occasions during a four-month period, supervisor made “extensive and persistent sexual overtures”); Madray, 208 F.3d at 1293 & n.2 (indicating that, over time, manager’s “hugging and patting” behavior became offensive); Leugers, 2000 WL 191685, at *1 (indicating that the supervisor subjected plaintiff to inappropriate touching and letters over a six-month period); Ritchie, 2000 WL 84461, at *1 (alleging that supervisors made “numerous sexually suggestive and derogatory comments . . . and improper physical sexual contact” over a four-month period); Montero, 192 F.3d at 859, 863 (alleging sexual harassment over a twenty-month period); Caridad , 191 F.3d at 290 (alleging sexual harassment over a six-month period); Shaw, 180 F.3d at 809–10 (alleging that supervisor made increasingly explicit sexual comments over the three to four months of plaintiff’s employment); Scrivner, 169 F.3d at 970 (alleging a months-long period of sexual harassment); Swingle, 2001 WL 483317, at *1–2 (alleging sexual harassment over a


the case in Greene, by a failure to avail or a delay in availing themselves of employer-provided anti-harassment policies and complaint procedures.187 Unlike the court in Greene, however, lower courts in these cases virtually never put the employer to the burden of proving the timing of the hostile environment and the timing of the reasonable person’s response to it. They simply grant or affirm summary judgment and complete dismissal as a matter of law, without even considering whether in fact a reasonable person would have avoided all harm.188 period of two to three years); Childress, 104 F. Supp. 2d at 707–08 (alleging sexual harassment over approximately one year); Morris, 1999 WL 820457, at *1 (alleging a racially hostile work environment during plaintiff’s year of employment); Schoiber, 1999 WL 825275, at *1 (alleging sexual harassment during plaintiff’s two-month employment); Alberter, 70 F. Supp. 2d at 1140, 1146 n.4 (alleging sexual harassment “on various occasions”); Barton Protective Servs., 47 F. Supp. 2d at 59 (alleging sexual harassment “on a daily basis” for a year); Dedner, 42 F. Supp. 2d at 1256 (alleging a two-month period of sexual harassment); Maddin, 33 F. Supp. 2d at 1029 (alleging a seven-month period of sexual harassment); Jones, 20 F. Supp. 2d at 1382 (alleging a multi-week period of sexual harassment); Duran , 17 F. Supp. 2d at 1197–99 (alleging sexual harassment and assault of two plaintiffs during their one- and three-month periods of employment, respectively); Fierro, 13 F. Supp. 2d at 486–87 (alleging racial slurs and harassment over a two-year period); Sconce, 9 F. Supp. 2d at 775 (alleging sexual harassment until plaintiff transferred). 187. See, e.g., Leopold, 239 F.3d at 245–46 (finding plaintiff’s failure to use employer’s internal complaint procedure unreasonable, thereby establishing second prong of employer’s affirmative defense); Hill, 218 F.3d at 643–44 (finding plaintiff’s early unsigned complaint letters constituted unreasonable delay in using opportunities to prevent harassment); Casiano, 213 F.3d at 286–87 (finding plaintiff’s failure to report incidents until months later and failure to imply the sexual nature of the harassment unreasonable); Madray, 208 F.3d at 1302 (finding plaintiffs’ delay in using employer’s complaint procedures unreasonable); Leugers, 2000 WL 191685, at *3 (finding plaintiff’s failure to follow employer’s complaint procedure unreasonable); Ritchie, 2000 WL 84461, at *3–4 (same); Montero, 192 F.3d at 863 (finding plaintiff’s delay in using employer’s complaint procedures unreasonable); Caridad , 191 F.3d at 295–96 (finding plaintiff’s failure to use employer’s complaint procedure unreasonable); Shaw, 180 F.3d at 813 (same); Scrivner, 169 F.3d at 971–72 (finding plaintiff’s failure to complain about the harasser’s increasingly offensive behavior unreasonable); Swingle, 2001 WL 483317, at *11 (finding plaintiff’s refusal of a replacement supervisor unreasonable); Childress, 104 F. Supp. 2d at 709 (finding plaintiff’s failure to take advantage of company complaint procedures unreasonable); Morris, 1999 WL 820457, at *5–6 (finding plaintiff’s failure to follow formal complaint procedures unreasonable); Schoiber, 1999 WL 825275, at *13 (finding plaintiff’s delay in reporting harassment until after plaintiff quit unreasonable); Alberter, 70 F. Supp. 2d at 1150–51 (same); Barton Protective Servs., 47 F. Supp. 2d at 61 (finding plaintiff’s eleven-month delay in reporting harassment unreasonable); Dedner, 42 F. Supp. 2d at 1260 (finding plaintiff’s three-month delay in reporting harassment unreasonable); Maddin, 33 F. Supp. 2d at 1032–33 (finding failure to follow notification procedure unreasonable); Jones, 20 F. Supp. 2d at 1386 (finding failure to use employer’s complaint procedure unreasonable); Duran , 17 F. Supp. 2d at 1203 (finding failure to complain before transfer unreasonable); Fierro, 13 F. Supp. 2d at 492–93 (finding failure to follow complaint procedures unreasonable); Sconce, 9 F. Supp. 2d at 778 (finding failure to report misconduct unreasonable). 188. See, e.g., Leopold, 239 F.3d at 246 (treating plaintiff’s failure to use employer’s complaint procedure as a complete bar to recovery with no discussion of how much harm a reasonably prompt complaint would have prevented); Casiano, 213 F.3d at 287 & n.15


For purposes of summary judgment, many courts in this line of cases assume that the plaintiff did indeed suffer exposure to a hostile environment.189 But never do these courts require the defendant-employer to establish when the hostile environment initially accrued—with the supervisor’s first antic? His second? His third?190 Without knowing that point of accrual, there can be

(affirming complete dismissal against a dilatory plaintiff and misquoting Faragher v. City of Boca Raton, 524 U.S. 775, 806–07 (1998), as saying that a dilatory plaintiff “should not recover damages”; the full quote from Faragher actually says “should not recover damages that could have been avoided” (emphasis added)); Hill, 218 F.3d at 644 (concluding that “strict liability does not apply” because plaintiff delayed using employer’s complaint procedure with no discussion of damages mitigation as a possible alternative consequence of plaintiff’s delay); Madray, 208 F.3d at 1302–03 (treating plaintiffs’ delay in using employer’s complaint procedures as grounds to “eliminate . . . vicarious liability for the sexual harassment plaintiffs experienced” with no discussion of how much harassment a reasonable person would have avoided); Leugers, 2000 WL 191685, at *3 (treating plaintiff’s failure to use employer’s complaint procedure as a complete bar to recovery with no discussion of how much harm a reasonably prompt complaint would have prevented); Ritchie, 2000 WL 84461, at *3–4 (treating plaintiff’s failure to use employer’s complaint procedure as a complete bar to recovery with no discussion of how much harm a reasonably prompt complaint would have prevented); Montero, 192 F.3d at 863–64 (affirming complete dismissal against a dilatory plaintiff with no discussion of how much harm a reasonable person would have avoided); Caridad , 191 F.3d at 295 (concluding that plaintiff’s reasons for delayed complaint were “insufficient to preclude summary judgment” with no discussion of how much harm would have been avoided by reasonably prompt complaint); Shaw, 180 F.3d at 810, 813 (describing Ellerth defense as a way to “avoid” liability without mentioning further that the defense alternatively may result in damages reduction and deciding that dilatory plaintiff had acted in a “manner that a victim . . . should not act in order to win recovery”); Scrivner, 169 F.3d at 971–72 & n.5 (affirming complete dismissal against dilatory plaintiff and expressly refusing to consider plaintiff’s request for damages-mitigation analysis); Swingle, 2001 WL 483317, at *11 (deciding that dilatory plaintiff’s claim “must fail on its merits” with no discussion of how much harm a reasonable person would have avoided); Childress, 104 F. Supp. 2d at 709 (granting summary judgment and complete dismissal against dilatory plaintiff with no discussion of how much harm a reasonable person would have avoided); Morris, 1999 WL 820457, at *6 (same); Schoiber, 1999 WL 825275, at *13 (same); Alberter, 70 F. Supp. 2d at 1151 (same); Barton Protective Servs., 47 F. Supp. 2d at 61 (summary judgment and complete dismissal based on court’s bare assertion that a reasonable person in plaintiff’s position would have avoided all harm with no findings on when the environment became hostile nor when a reasonable person would have reported it); Dedner, 42 F. Supp. 2d at 1260 (granting summary judgment and complete dismissal against dilatory plaintiff with no discussion of how much harm a reasonable person would have avoided); Maddin, 33 F. Supp. 2d at 1032–33 (same); Jones, 20 F. Supp. 2d at 1386 (same); Duran , 17 F. Supp. 2d at 1203 (same); Fierro, 13 F. Supp. 2d at 492–93 (same); Sconce, 9 F. Supp. 2d at 778 (same). 189. See, e.g., Leopold, 239 F.3d at 244; Casiano, 213 F.3d at 285–86; Madray, 208 F.3d at 1292 n.1; Leugers, 2000 WL 191685, at *3; Montero, 192 F.3d at 860; Caridad, 191 F.3d at 291, 295–96; Scrivner, 169 F.3d at 971 & n.3; Swingle, 2001 WL 483317, at *7–8; Childress, 104 F. Supp. 2d at 708; Morris, 1999 WL 820457, at *6 n.9; Schoiber, 1999 WL 825275, at *2; Alberter, 70 F. Supp. 2d at 1146 n.4; Barton Protective Servs., 47 F. Supp. 2d at 58; Dedner, 42 F. Supp. 2d at 1256; Maddin, 33 F. Supp. 2d at 1033; Jones, 20 F. Supp. 2d at 1384; Sconce, 9 F. Supp. 2d at 776. 190. By definition, the gradual-onset type of case, purportedly left untouched by the Indest holding, contemplates a gradual building of incidents that eventually crosses Title VII’s abuse threshold. See, e.g., Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir.


no sensible application of the avoidable consequences doctrine, at least not as that doctrine was explained in Greene (and in the EEOC Enforcement Guidance).191 Without knowing when the legal harm initially accrued, how can a court find, as a matter of law, that a reasonably prompt complaint about the supervisor’s misconduct necessarily would have preceded—and thus prevented—all harm?192 Apparently, the issue of causal apportionment does not matter to these courts; dilatory plaintiffs, even if subjected to initially unavoidable harm, simply do not deserve compensation.193

A stark example of this sort of punitive divestiture is provided by Watkins v. Professional Security Bureau Ltd.194 As explained above, Watkins involved a hostile environment created by a sudden rape that the plaintiff-victim never saw coming.195 As further explained above, the court in Watkins, following Indest, stated that establishment of the first prong of the Ellerth defense was sufficient to insulate the employer from liability.196 Even so, offering an alternative rationale, the Watkins court went on to consider the second prong and decided that the plaintiff had unreasonably delayed complaining about the unavoidable rape.197 Because of this purportedly unreasonable

1999) (explaining hostile environment harassment as a threshold of abuse often reached upon the “accumulated effect” of multiple incidents of misconduct); Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990) (noting that, just as “[a] play cannot be understood on the basis of some of its scenes but only on its entire performance, . . . a discrimination analysis must concentrate not on individual incidents, but on the overall scenario”). See also Theresa M. Beiner, The Misuse of Summary Judgment in Hostile Environment Cases, 34 WAKE FOREST L. REV. 71, 91 (1999) (interpreting the Supreme Court’s “totality of the circumstances” test to mean that lower courts must “consider [multiple] incidents . . . together to determine if a reasonable jury could find that the incidents considered together would be enough to find for the plaintiff”). 191. See EEOC ENFORCEMENT GUIDANCE, supra note 77, at note 47 (explaining that complete liability avoidance on summary judgment requires that an employer “show not merely that the plaintiff inexcusably delayed reporting . . . but that, as a matter of law, a reasonable person in her place would have come forward early enough to prevent the harassment from becoming severe or pervasive”) (citing Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999)). 192. As explained above, complete exoneration of the defendant under the Ellerth defense occurs only if the plaintiff unreasonably failed to avoid all harm. Refer to note 113 supra and accompanying text (explaining the Court’s application of the doctrine of avoidable consequences and its corollary, the rule of casual apportionment). 193. See Grossman, supra note 69, at 709–15, 722–23 (discussing the tendency among post-Ellerth courts to treat post-harm failures to complain to make the plaintiff undeserving of recovery for even initially unavoidable harm). 194. No. 98-2555, 1999 WL 1032614 (4th Cir. Nov. 15, 1999). 195. Refer to text accompanying note 141 supra (indicating the rape was sudden, forcible, and unavoidable). 196. Refer to text accompanying note 144 supra. 197. Watkins, 1999 WL 1032614, at *5.


delay, the court decided, as a matter of law, that the plaintiff could recover nothing for the rape,198 even though the plaintiff’s delay—which, of course, came after the sudden rape—bore absolutely no causal connection to the occurrence of the rape. The reasonable person also would have been raped, though apparently she would have subsequently complained more promptly. And a lot of good that would have done her.199

C. The Combined Impact of Both Lines of Cases: A Virtually Guaranteed Summary Judgment Safe Harbor for Employers

The straightforward promise of Ellerth and Faragher was a limited, but certainly real, range of “vicarious liability” for hostile environment harassment committed by workplace supervisors. Specifically, the Court’s simple pronouncements in those cases require that employers be held liable without fault for harm that the victimized employee could not have avoided through reasonable care.200 The two lines of post-Ellerth caselaw discussed above, however, are making the promise of vicarious liability disappear. In its place, they are substituting the pre-Ellerth defense of prompt remedial action upon notice.

Lower courts responsible for one line of post-Ellerth cases simply “cannot conceive” of holding diligent employers liable, at least not in cases of rapid-onset harassment.201 In rapid-onset cases, and sometimes gradual-onset cases, they throw out the Ellerth defense’s second-prong requirement that the plaintiff unreasonably failed to avoid harm.202 As long as the employer promptly intervenes upon notice, even after unavoidable harm is done, the employer prevails.

198. The court affirmed the trial court’s grant of judgment for the defendant as a matter of law, which was entered after a jury verdict for the plaintiff. Id. at *1–2. 199. A more prompt complaint, of course, would have done nothing to prevent the assault. Moreover, under the Watkins court’s alternative rationale, a more prompt complaint would have done nothing to prevent exoneration of the employer under the Indest-modified affirmative defense to vicarious liability. Id. at *5 n.16. The harshness of the Watkins court’s dual rationale sharply contrasts with the approach taken in another case involving a plaintiff who delayed complaining about a sudden incident of assaultive harassment. See Fall v. Indiana Univ. Bd. of Trustees, 12 F. Supp. 2d 870 (N.D. Ind. 1998). In Fall, the court saw fit to apply both prongs of the defense and denied a motion for summary judgment because delayed complaints might reasonably be expected in cases of assaultive victimization, and because a delayed complaint, even if unreasonable, might only be relevant to the issue of damages mitigation. Id. at 880–84, 884 n.15. 200. Refer to text accompanying notes 114–18 supra. 201. Refer to notes 144–45 supra and accompanying text. 202. See, e.g., Jaudon v. Elder Health, Inc., 125 F. Supp. 2d 153, 164 (D. Md. 2000) (agreeing with the Watkins court’s refusal to find liability when an employer satisfies only the first prong of the affirmative defense).


Lower courts in the other line of post-Ellerth cases cannot conceive of holding diligent employers liable either, not when presumably dilatory plaintiffs overlook employer-provided complaint procedures.203 In gradual-onset cases, and sometimes rapid-onset cases, they disregard the possibility that a reasonable person in the plaintiff’s position might not have invoked the procedures until after accrual of the hostile environment.204 A subsequently delayed complaint—after accrual of the hostile e nvironment—can somehow relate back and divest the dilatory plaintiff of compensation for initially unavoidable harm.205

The upshot is a virtually guaranteed safe harbor against claims of supervisory harassment. To enjoy immunity, all an employer must do is institute anti-harassment policies and procedures that include a harassment-complaint mechanism.206 This triggers both lines of post-Ellerth caselaw discussed above. The diligent-employer line is triggered whenever an aggrieved employee follows the complaint procedure: if the employer promptly intervenes, the employee recovers nothing—even if the employee suffered unavoidable pre-complaint harassment. Alternatively, under the dilatory-plaintiff line of post-Ellerth cases, principles of causal apportionment are largely ignored whenever an aggrieved employee does not complain; instead, the failure is treated as something akin to contributory negligence capable of extinguishing all recovery, even for initially unavoidable harm.

Remarkably, employers readily enjoy this safe harbor at the summary judgment stage of litigation,207 a result that smacks of

203. Refer to note 184 supra and accompanying text (describing the view that a majority of post-Ellerth courts maintain a pro-employer position in dilatory-plaintiff cases). 204. Refer to note 188 supra and accompanying text (analyzing several cases that allowed summary judgment and complete dismissal without considering the reasonable person standard). 205. Refer to notes 194–99 supra and accompanying text 206. As one commentator explains, “In actuality, the affirmative defense could prove to be a very strong weapon in the employers’ arsenal. All the employer need do is make sure that it has an effective policy, and liability . . . should be fairly easy to avoid.” Mullane, supra note 134, at 581. This observation sharply contrasts with the EEOC’s view on the subject of safe harbors. According to the EEOC, “There are no ‘safe harbors’ for employers based on the written content of policies and procedures.” EEOC ENFORCEMENT GUIDANCE, supra note 77, at text following note 53. 207. Darrell S. Gay et al., Summary Judgment in the Aftermath of Ellerth and Faragher, 604 PLI/LIT. 49, 89 (1999) (explaining how summary judgment for employers is just as likely after Ellerth and Faragher as before); Bertrand C. Sellier, Courts Having Little Difficulty Applying New Harassment Standards, N.Y. L.J., Nov. 25, 1998, at 1 (discussing the ease with which courts grant employer summary judgment motions based on a “safe harbor” provided by Ellerth and Faragher).


judicial bias against claims of hostile environment harassment.208 The Ellerth defense is supposed to impose upon employers the burden of proof under a conjunctively framed two-pronged test, and both prongs of this test raise numerous, typically fact-sensitive questions about “reasonableness” that one would think are generally best suited for juries.209 The next section argues that, indeed, juries have a significant role in the proper application of the Ellerth defense.

IV. A CRITIQUE OF THE DUBIOUS SAFE HARBOR STRATEGY

This section separately critiques each line of post-Ellerth caselaw, and then critiques proposals from commentators who have already begun calls to reform the Supreme Court’s vicarious liability framework. The section concludes that reform is not necessary. All that is needed is proper application of the Court’s framework.

A. The Problem With the Diligent-Employer Line of Cases: The “and” Between the Two Prongs of the One and Only Defense to Vicarious Liability Does Not Mean “or”

Every time it has written about the issue, the Supreme Court has consistently defined hostile environment harassment as a level of misconduct that is “sufficiently severe or pervasive” to create an abusive working environment.210 In turn, lower courts and the EEOC have consistently recognized that the “severe or pervasive” component of this d efinition contemplates roughly two types of abusive environments: (1) those created suddenly by a “severe” single event or rapid burst of events, such as physical abuse; and (2) those created gradually by a “pervasive” pattern of lesser-offensive events, such as repeated verbal taunts, jokes, propositions, or gestures.211 No doubt aware

208. See Gallagher v. Delaney, 139 F.3d 338, 343 (2d Cir. 1998) (“The dangers of robust use of summary judgment to clear trial dockets are particularly acute in current sex discrimination cases.”); M. Isabel Medina, A Matter of Fact: Hostile Environments and Summary Judgment, 8 S. CAL. REV. L. & WOMEN’S STUD. 311, 311 (1999) (reviewing the trend in the district courts to over-aggressively grant summary judgment in sexual harassment cases); Beiner, supra note 190, at 291–323 (discussing numerous studies tending to establish a judicial bias underlying a misuse of summary judgment to clear court dockets of hostile environment cases). 209. Refer to notes 102, 118–19 supra and accompanying text (analyzing the two-pronged affirmative defense stated in Ellerth and Faragher). 210. Refer to note 35 supra and accompanying text. 211. Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 170 (10th Cir. 1996) (explaining that an “employee may prevail in an action for sexual harassment either if the asserted harassment was ‘pervasive’ or if there was only a single incident of harassment which, standing alone, was sufficiently ‘severe.’”); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d


of the bifurcation it had created, the Supreme Court, in Ellerth and Faragher, announced only one rule of vicarious liability, subject to only one affirmative defense. For purposes of clarity, here is a complete quotation of the Court’s joint holding in those cases:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.212

Cir. 1995) (“Even a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment . . . .”); Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464 (7th Cir. 1990) (recognizing as actionable a single incident consisting of plaintiff’s foreman forcing her face into his crotch); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953, 969–70 (D. Minn. 1998) (recognizing as actionable isolated assaultive conduct); Fall v. Ind. Univ. Bd. of Trustees, 12 F. Supp. 2d 870, 880 (N.D. Ind. 1998) (recognizing an isolated incident of groping as actionable); Russell v. Midwest-Werner & Pfleiderer, Inc., 949 F. Supp. 792, 797 (D. Kan. 1996) (recognizing distinction between “pervasive” harassment arising out of repeated incidents and single-incident harassment arising out of one “severe” event); Bedford v. S.E. Pa. Transp. Auth., 867 F. Supp. 288, 297 (E.D. Pa. 1994) (noting that most harassment cases involve repeated incidents, but that “a single act of harassment because of sex may be sufficient”); Campbell v. Kan. State Univ., 780 F. Supp. 755, 762 (D. Kan. 1991) (finding a spanking on the buttocks to be actionable and explaining that “a single isolated incident—while perhaps not pervasive—may nevertheless be so severe as to amount to an actionable violation of Title VII”); EEOC, POLICY GUIDANCE ON CURRENT

ISSUES OF SEXUAL HARASSMENT, at text accompanying notes 21–24 (March 19, 1990) (explaining that a “hostile environment claim generally requires a showing of a pattern of offensive conduct,” but that “a single, unusually severe incident,” such as “intentional touching of . . . intimate body areas” will suffice), available at http://www.eeoc.gov/ docs/currentissues/html. See also Watkins v. Prof’l Sec. Bureau, Ltd., No. 98-2555, 1999 WL 1032614, at *5 (4th Cir. Nov. 15, 1999) (per curiam) (assuming that a single incident of sexual assault is actionable); Todd v. Ortho Biotech, Inc., 175 F.3d 595, 599 (8th Cir. 1999) (Arnold, J., concurring) (expressing “no doubt that a single severe act can amount to a hostile work environment”); Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) (“[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.”); Canada v. Boyd Group, Inc., 809 F. Supp. 771, 776 (D. Nev. 1992) (“[T]he required showing of severity of conduct varies inversely with the required showing of frequency of conduct.”). But cf. Clayton v. White Hall Sch. Dist., 875 F.2d 676, 680 (8th Cir. 1989) (holding that a single discriminatory act against plaintiff’s coworker was insufficient to create a hostile environment for plaintiff); Jones v. Clinton, 990 F. Supp. 657, 675–76 (E.D. Ark. 1998) (limiting single-incident harassment to an extremely severe event). 212. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of


Nowhere in this recitation, nor anywhere else in either opinion, did the Court ever suggest that its holding was limited to gradual-onset cases, as was subsequently asserted in the post-Ellerth line of cases that began with Indest.213 Yet, confining the Supreme Court’s holding to gradual-onset harassment, courts in the Indest line of cases have continued to advance in rapid-onset cases the pre-Ellerth defense of prompt remedial action upon notice.214 As further explained above, some cases in this line attempt to square this diligent-employer immunity with the Supreme Court’s conjunctively framed affirmative defense by expressly or impliedly maintaining that the “and” between the two prongs of the defense means “or,” and thus employer diligence under the first prong, alone, is sufficient in rapid-onset cases.215

This resurrection of a diligent-employer immunity utterly defies the plain language and import of the Supreme Court’s unified holding in Ellerth and Faragher. In both of those cases, the Court broadly defined the issue before it, without limitation to any particular harassment paradigm.216 The Court then proceeded to exhaustively evaluate217 the employer-liability question in an effort to resolve prior disarray among the circuits.218 Further, the Court sought “to accommodate” a

Boca Raton, 524 U.S. 775, 807 (1998). 213. Refer to text accompanying notes 124–39 supra (explaining Indest, the first reported decision confining Ellerth and Faragher to gradual-onset harassment). 214. As two commentators explain, the Indest court’s effort to “resurrect the prompt remedial action defense by distinguishing Ellerth and Faragher on its facts” essentially “avoided the harsh reality of Ellerth and Faragher.” Sara A. Begley & Amy G. Macinanti, Counseling Employers on Sexual Harassment After Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, 45 NO. 4 PRAC. LAW 31, 40–41 (1999). 215. Refer to notes 159–60 supra and accompanying text. 216. See Ellerth, 524 U.S. at 746–47 (opening with the sentence, “We decide whether, under Title VII . . . an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor’s actions.”); Faragher, 524 U.S. at 780 (opening with the sentence, “This case calls for identification of the circumstances under which an employer may be held liable under Title VII . . . for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination.”). 217. The Court’s evaluation of the employer liability question truly was exhaustive. Spanning over forty pages, see Ellerth, 524 U.S. at 751–66; Faragher, 524 U.S. at 786–810, the Court’s twin opinions considered virtually every alternative offered by pre-Ellerth lower courts, by the Courts of Appeals in both Ellerth and Faragher, by the parties in both cases, and by the Restatement (Second) of Agency. 218. As explained above, lower courts had diverged dramatically on the question of employer liability for supervisory harassment. Refer to note 69 supra and accompanying text (recounting that post-Meritor courts differed in their approaches to supervisory harassment liability). The Supreme Court, in its own words, entered the fray “to address the divergence.” Refer to text accompanying note 73 supra (explaining the need for


comprehensive range of competing principles and policies: specifically, the panoply of agency principles counseling in favor of vicarious liability when supervisors abuse their power, versus policies of prevention and mitigation furthered by limiting liability when employers exercise forethought and employees fail to pursue reasonable harm-avoidance strategies.219 As a result of this comprehensive balancing, the Court, in both opinions, concurrently adopted an identically worded affirmative defense to vicarious liability, semantically structured so as to resemble interstitial legislation of the sort that, according to Professor H. L. A. Hart, arises when judges exercise a quasi-legislative role while grappling with gaps in statutes.220 Expressly joining both prongs of the defense with the word “and,” the Court described its interstitial legislation as a “composite defense”221 that imposes “coordinate”222 and “corresponding”223 duties on employers and employees. Indeed, in both cases, the Court made clear that “[t]he defense comprises two necessary elements.”224

That the “and” really means “and”—in all cases of supervisory harassment—was emphatically underscored by the Ellerth and Faragher majority’s flat rejection of Justice Thomas’s expressed concern about a conjunctively conceived defense. In a dissenting opinion in Ellerth, Justice Thomas objected that “employers will be liable notwithstanding the affirmative defense, even though they acted reasonably, so long as the plaintiff in question fulfilled her duty of reasonable care to avoid harm.”225 Justice Thomas’s concern was precisely the concern later expressed by lower courts in cases like Indest, Watkins, and Todd.226

Supreme Court clarification in Ellerth and Faragher, which were released on the same day). 219. See Ellerth, 524 U.S. at 764; Faragher, 524 U.S. at 807. 220. HART, supra note 1, at 272–73 (asserting that judges have discretion, different from that of a legislator, to create law in areas where no clear legal answer exists by relying on precedent and social policies). 221. Faragher, 524 U.S. at 805. 222. Id. at 806. 223. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. 224. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807 (emphasis added). 225. Ellerth, 524 U.S. at 773 (Thomas, J., dissenting). 226. Indest v. Freeman Decorating, Inc., 164 F.3d 258, 266 (5th Cir. 1999) (expressing concern about “[i]mposing vicarious liability on an employer . . . despite its swift and appropriate remedial response to the victim’s complaint”); Watkins v. Prof’l Sec. Bureau Ltd., No. 98-2555 1999 WL 1032614, at *5 n.16 (4th Cir. Nov. 15, 1999) (expressing an inability to conceive of holding an employer liable when he or she responded promptly to reported harassment); Todd v. Ortho Biotech Inc., 175 F.3d 595, 598 (8th Cir. 1999) (suggesting that perhaps single-incident harassment should no longer be actionable because of the difficulties that diligent employers have avoiding liability for it). See also Francis Achampong, Employer Liability for Hostile Environment Sexual


The Court’s majority response to this concern was matter of fact. “And” means “and.”227 The two prongs of the affirmative defense reflect “coordinate” and “corresponding” duties discerned from a comprehensive, quasi-legislative balancing. If a plaintiff-victim could not have reasonably avoided a suddenly imposed hostile environment, the second prong of the defense goes unmet, the employer remains “vicariously liable,” and the plaintiff must be compensated for the unavoidable harm.228 As one appellate judge has noted, lower courts might disagree with the result, but they are bound by the Supreme Court’s judgment that employers, no matter how diligent after the fact, remain vicariously liable for sudden and unforeseeable supervisory abuse, such as “raping, flashing, or forcibly groping or disrobing the subordinate employee.”229 The EEOC concurs with the Supreme Court’s judgment, explaining:

Harassment is the only type of discrimination carried out by a supervisor for which an employer can avoid liability, and that limitation must be construed narrowly. The employer will be shielded from liability for harassment by a supervisor only if it proves that it exercised reasonable care in preventing and correcting the harassment and that the employee unreasonably failed to avoid all of the harm. If

Harassment by a Supervisor: A Critical Assessment of the Supreme Court’s New Vicarious Liability Standard, 28 SW. U. L. REV. 45, 66–67 (1998) (finding a vicarious liability framework unfair when it results in liability despite the employer and plaintiff’s reasonable care). 227. As one appellate court has observed, “Both elements must be satisfied for the defendant-employer to avoid liability . . . .” Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001). 228. See, e.g., Gunnell v. Utah Valley State College, 152 F.3d 1253, 1261 (10th Cir. 1998) (reversing summary judgment even though employer promptly stopped the harassment upon notice); Phillips v. Taco Bell Corp., 156 F.3d 884, 889–90 (8th Cir. 1998) (reversing summary judgment and dismissal based solely on employer’s “prompt remedial action,” and instructing on remand that “the finder of fact” apply both prongs of the Ellerth defense); Moore v. Sam’s Club, 55 F. Supp. 2d 177, 191–93, 195 (S.D.N.Y. 1999) (denying motion for summary judgment because employer’s prompt response to plaintiff’s prompt complaint established only the first prong of the defense); Corcoran v. Shoney’s Colonial, Inc., 24 F. Supp. 2d 601, 606–07 (W.D. Va. 1998) (same); Fall v. Indiana Univ. Bd. of Trustees, 12 F. Supp. 2d 870, 884 (N.D. Ind. 1998) (denying motion for summary judgment because reasonable jurors might find plaintiff’s delayed complaint about harassment reasonable and thus employer could not establish the defense’s second prong as a matter of law). But cf. Mirakhorli v. DFW Mgmt. Co., No. CIV. A. 394-CV-1464D, 1999 WL 354226, at *6 (N.D. Tex. May 24, 1999) (stating that “the defense should not be considered feckless,” and sharing the concern about automatic liability expressed in Indest, Todd, and the Thomas dissent from Ellerth). 229. Indest v. Freeman Decorating, Inc., 168 F.3d 795, 804 n.52 (5th Cir. 1999) (Weiner, J., specially concurring).


both parties exercise reasonable care, the defense will fail.230

To be sure, the Faragher/Ellerth Court’s quasi-legislative balancing compromised Title VII’s compensatory aim to make injured persons whole231—but only in favor of “twin deterrent goals” aimed at encouraging both preventive strategies by employers and harm avoidance by employees.232 Title VII’s compensatory aim remains effectual if, on the facts of any given case, the employer cannot prove both its reasonable efforts to prevent and correct harassment and the plaintiff’s unreasonable failure to avoid it.233 To accept an innocent-employer immunity based solely on the employer’s reasonable conduct, as allowed in cases like Indest and Watkins, would unduly discount the weight the Supreme Court has repeatedly assigned to Title VII’s compensatory aim234 when at least equally innocent victims suffer significant violations of their civil rights.

Indeed, equal innocence hardly describes cases like Indest and Watkins. The victimized employees in those cases did not hire and train their abusive supervisors—the “innocent” employers did. The victimized employees in those cases did not confer upon their abusive supervisors a status imbued with a special capacity and opportunity to harass subordinates—the “innocent” employers did. And the victimized employees in those cases did not exercise day-to-day controlling authority over their abusive supervisors—the “innocent” employers did. Under these circumstances, why should the scale tip in favor of the employers rather than the victimized employees who suffered harm they could not reasonably avoid? Whatever happened to “vicarious” liability for supervisory harassment?235

230. EEOC ENFORCEMENT GUIDANCE, supra note 77, at text following note 50. Refer to text accompanying note 158 supra (discussing the EEOC’s view that the defense fails in cases of sudden and unavoidable supervisory abuses). 231. Faragher v. City of Boca Raton, 524 U.S. 775, 805–06 (1998). 232. See Indest, 168 F.3d at 800 (Weiner, J., specially concurring). 233. The Court certainly did not entirely dismiss Title VII’s compensatory aim. See Faragher, 524 U.S. at 805 (acknowledging Title VII’s aim to make victims whole before announcing the conjunctively framed defense). 234. See, e.g., McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 358 (1995) (“Deterrence is one object of [Title VII]. Compensation for injuries caused by the prohibited discrimination is another.”); Landgraf v. USI Film Prods., 511 U.S. 244, 282 (1994) (explaining a 1991 compensatory damages provision that “reflects Congress’ desire to afford victims of discrimination more complete redress for violations of rules established more than a generation ago in the Civil Rights Act of 1964”); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (discussing Title VII’s “purpose . . . to make persons whole for injuries suffered on account of unlawful employment discrimination”). 235. The Ellerth analysis presupposes a supervisor whose harassment was, in some sense, aided by the supervisor’s agency relationship with the employer. See Faragher, 524


Perhaps the most confounding irony of the diligent-employer line of cases is its source—Indest, a one-judge plurality opinion from a three-judge panel of the Fifth Circuit.236 That judge alone distinguished Ellerth and Faragher and resurrected, out of whole cloth, a pre-Ellerth diligent-employer immunity that denies recovery to innocent victims of suddenly imposed harassment when the employer, after the harm is done, promptly nips the “incipient hostile environment” in the bud.237 As a concurring judge on the Indest panel noted, the plurality’s effort to distinguish cases of “incipient hostile environment . . . [was] as neat an illusion as any sleight-of-hand artist ever created.”238 On his reading of Ellerth and Faragher, the concurring judge found that “the Court’s two opinions together set forth a comprehensive framework for determining when an employer can be held vicariously liable for sexual harassment by a supervisor.”239 This “remarkably straightforward” framework,240 according to the concurrence, makes an employer vicariously liable for supervisory harassment “unless the employer can prove both elements of the one and only affirmative defense now permitted by the Court.”241 Indeed, “nowhere [did] the Court imply, much less express, that short-lived harassment . . . somehow falls outside the ambit of the Court’s mandate.”242

At least one court, and the EEOC, have similarly criticized the Indest plurality opinion’s so-called “modified” reading of the

U.S. at 808–09 (commenting on how supervisors’ authority over subordinates in a remote setting aided accomplishing harassment, then turning to application of the two-prong defense). See also Jaudon v. Elder Health, Inc., 125 F. Supp. 2d 153, 162 (D. Md. 2000) (explaining an “agency-aided analysis” developing in the Fourth Circuit). This factual predicate is significant because it triggers the justifications for vicarious liability, not the least of which is the employer’s better position to control the risk of supervisory harassment. Refer to text accompanying notes 96–98 supra (noting that the Supreme Court observed “good reasons for vicarious liability”). 236. See Indest, 168 F.3d at 796 & n.1 (5th Cir. 1999) (Weiner, J., specially concurring) (noting that the other two judges on the panel merely concurred with the result, and thus neither the one-judge plurality opinion nor Judge Weiner’s concurring opinion is precedent in the Fifth Circuit). Refer to note 126 supra (same). 237. Refer to text accompanying notes 129–39 supra (discussing the judge’s decision that the second prong of the defense from Ellerth and Faragher did not apply in a case of sudden and unavoidable exposure to a hostile environment). 238. Indest, 168 F.3d at 798 (Weiner, J., specially concurring). 239. Id. at 796. 240. Id. 241. Id. The concurring judge, however, found it unnecessary to reach the vicarious liability question, concluding that the supervisor’s misconduct simply did not reach the level of severity or pervasiveness to be actionable. Id. at 806. Refer to notes 276–84 infra and accompanying text (questioning whether a judge should make this summary conclusion). 242. Indest, 168 F.3d at 798.


Supreme Court’s mandate.243 The one-judge Indest plurality and the ensuing line of diligent-employer cases following it remarkably illustrate how bad non-precedent can lead to bad precedent.244 At bottom, this precedent reflects an outright employer-oriented bias.245 An employer’s prompt intervention upon notice creates a summary judgment shortcut to complete dismissal in these cases, despite a substantial question of fact relating to the second prong of the defense: specifically, whether the plaintiff-victim might have suffered at least some unavoidable harassment before employer intervention, for example, the unavoidable rape in Watkins. Refusing to even consider this issue, courts following the “modified” defense invented by one Fifth Circuit judge are absolving employers, as a matter of law, of liability that the Supreme Court has held is “vicarious.” Employer diligence is all that matters. The harassment victim’s innocence does not.246

243. See Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1026 (10th Cir. 2001) (rejecting an Indest-inspired jury instruction that would have treated employer diligence alone as dispositive in a case of short-lived harassment because “there is no reason to believe that the ‘remarkably straightforward’ framework outlined in Faragher and Burlington does not control all cases”); EEOC ENFORCEMENT GUIDANCE, supra note 77, at note 44 (rejecting the conclusion in Indest that an employer’s quick response to a sudden hostile environment exempts the employer from liability). See also Begley & Macinanti, supra note 214, at 41 (characterizing Indest as “avoid[ing] the harsh reality of Ellerth and Faragher” based on “fine factual distinctions”). 244. Apparently, a concurring judge in Indest, Judge Weiner, has had the last say on the matter in the Fifth Circuit. Writing for a subsequent panel of the Fifth Circuit—a panel that did not include the plurality judge from Indest—Judge Weiner, in a case of gradually mounting harassment, gratuitously remarked about the Ellerth defense being “the one and only affirmative defense” to vicarious liability for supervisory harassment. Casiano v. AT&T Corp., 213 F.3d 278, 284 (5th Cir. 2000). 245. See Sherwyn, supra note 119, at 1266 (based on the results of a comprehensive study, concluding that post-Ellerth courts are “result-oriented” in that they “do not evidence a desire to punish an employer that has acted responsibly and reasonably”). Refer to note 208 supra and accompanying text (explaining a bias held by some federal judges against harassment claims). 246. The Indest-Watkins-Todd line of cases sharply contrasts with the approach taken in Corcoran v. Shoney’s Colonial, Inc., 24 F. Supp. 2d 601 (W.D. Va. 1998). In Corcoran , a supervisor made a few sexual remarks to the plaintiff-employee and then left her alone for eight months. Id. at 606. Then he suddenly assaulted her, and she promptly complained about the assault to the employer. Id. On the employer’s motion for summary judgment, the court in Corcoran applied both prongs of the Ellerth defense, and denied the motion even though the employer had promptly remedied the situation after the victim’s prompt complaint. Id. at 606–07. Establishment of the first prong of the defense, alone, was simply not enough. See id. at 607 (“The defense as a whole [was] of no assistance in the corporate defendants’ attempt to avoid vicarious liability.”). See also, e.g., Fall v. Ind. Univ. Bd. of Trustees, 12 F. Supp. 2d 870, 884 (N.D. Ind. 1998) (stating that, even if it was assumed that the university had no notice of the harassment, the university would still need to demonstrate “that the [p]laintiff unreasonably failed to take advantage of the university’s corrective opportunities to remedy the harassment”).


B. The Problem With the Dilatory-Plaintiff Line of Cases: Intensely Factual Questions Generally Preclude Ascertaining, as a Matter of Law, How Much Abuse the Reasonable Person Would Have Avoided

Integral to the second prong of the Ellerth defense is a harm-avoidance analysis that many post-Ellerth courts ignore in cases of gradually mounting harassment that the plaintiff does not immediately tell the employer about. As explained above, post-Ellerth courts instead often treat a plaintiff’s failure to use employer-provided complaint procedures as something akin to contributory negligence247—a largely rejected defense from antiquated tort law that operates as a complete bar to recovery.248 Yet, nowhere in its Ellerth and Faragher opinions did the Supreme Court suggest that it was resurrecting a contributory negligence defense in Title VII cases.249

In fact, the Court expressly “borrow[ed] from tort law the avoidable consequences doctrine” when explicating the second prong of the defense,250 and this doctrine is “radically different” from the doctrine of contributory negligence and its successor doctrine, comparative fault.251 The avoidable consequences doctrine is premised on “a rule of causal apportionment, in contrast to the rule of fault apportionment applied in comparative fault cases.”252 Under a rule of causal apportionment, the fact finder does not try to determine whether, or to what extent, a negligent plaintiff is blameworthy and thus undeserving of compensation; instead, the fact finder tries to determine how much harm the plaintiff should have avoided.253

247. Refer to text accompanying notes 168–69 supra (discussing the post-Ellerth trend to bar recovery whenever the plaintiff has delayed complaining). 248. Historically, a tort plaintiff’s “contributory negligence” operated as a complete defense to recovery against a defendant who negligently injured the plaintiff. DOBBS, supra note 112, at 494. The defense “departed seriously from ideals of accountability and deterrence because it completely relieved the defendant from liability even if he was by far the most negligent actor.” Id. Modernly, the defense has been largely replaced with various systems of “comparative fault” that generally attempt to apportion accountability based on the relative fault of the parties. Id. at 503–06. 249. The Supreme Court’s opinions in Ellerth and Faragher never uttered the words, but that has not stopped the “contributory negligence” rubric from cropping up in post-Ellerth commentary. See, e.g., Justin P. Smith, Letting the Master Answer: Employer Liability for Sexual Harassment in the Workplace After Faragher and Burlington Industries, 74 N.Y.U. L. REV. 1786, 1825 (1999); Mullane, supra note 134, at 580; Elizabeth M. Brama, The Changing Burden of Employer Liability for Workplace Discrimination, 83 MINN. L. REV. 1481, 1503 n.113 (1999). 250. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998). 251. DOBBS, supra note 112, at 510. 252. Id. at 511. 253. Id. at 510–11.


Indeed, the Ellerth/Faragher Court expressly incorporated this harm-avoidance concept into the second prong of the defense. Specifically, the Court stated:

If the plaintiff unreasonably failed to avail herself of the employer’s preventive or remedial apparatus, she should not recover damages that could have been avoided if she had done so. If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.254

Granted, a finding of an unreasonable failure to avoid all harm, and thus complete liability avoidance, is conceivable under this analysis.255 But it is not inevitable—certainly not so inevitable as to explain the deluge of full dismissals being issued by post-Ellerth courts on summary judgment.256 Under the harm-avoidance framework adopted in Ellerth and Faragher, full dismissal on summary judgment in gradual-onset cases is proper only if the reasonable person, as a matter of law, necessarily would have avoided all harm by complaining before the supervisor’s gradual misconduct crossed Title VII’s abuse threshold.257 Indeed, the reasonable person, as a matter of law,

254. Faragher v. City of Boca Raton, 524 U.S. 775, 806–07 (1998) (emphasis added). 255. To be sure, the Ellerth defense, according to the Court, goes to “liability or damages,” Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807, and the quotation above does say, in part, that “[i]f the victim could have avoided harm, no liability should be found against the employer,” Faragher, 524 U.S. at 807. So establishment of the Ellerth defense can indeed result in complete liability avoidance—as an alternative to partial damages mitigation—depending on the facts of the case. Savino v. C.P. Hall Co., 199 F.3d 925, 934 (7th Cir. 1999) (upholding a jury instruction that allowed the jury to “eliminate the defendant’s liability or, alternatively, reduce the plaintiff’s damages from the date [the jury finds] the affirmative defense was established”); EEOC ENFORCEMENT

GUIDANCE, supra note 77, at text accompanying notes 43, 51–52 (explaining that perfection of the defense can result in either liability avoidance or, alternatively, reduced damages, depending on whether the plaintiff should have avoided all or only some harm). 256. Refer to notes 184, 188 supra and accompanying text (discussing twenty-two illustrative cases). 257. Refer to text accompanying notes 175–83 supra (discussing Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999)); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953, 974–75 (D. Minn. 1998) (denying summary judgment motion, despite plaintiff’s delayed complaint, because the delay, even if unreasonable, did not necessarily prevent a jury from awarding a reduced damage award for initially unavoidable harm). See also Phillips v. Taco Bell Corp., 156 F.3d 884, 889 (8th Cir. 1998) (concluding that the reasonableness of plaintiff’s delayed complaint and “the effect this delay might have on [the employer’s] liability and any damages afforded [plaintiff] is a question best left to the finder of fact”).


would have to have lodged the complaint soon enough to allow completely preemptive employer intervention.258

The specific contours of this summary judgment burden were thoughtfully explored by the Court of Appeals for the District of Columbia in Greene v. Dalton.259 As explained above, the court in Greene embraced the plain import of Ellerth and Faragher and held that full dismissal on summary judgment presupposes not only the absence of a factual question about the plaintiff’s negligence, but also the absence of factual questions on two other matters: (1) the specific point when the abuse threshold was crossed; and (2) a time frame, before that point, during which the reasonable person necessarily would have complained and the presumably responsive employer would have successfully intervened.260 Finding questions of fact on both matters in the case before it, the court reversed the trial court’s grant of summary judgment in a case of gradually mounting misconduct that culminated in an assault, even though the plaintiff delayed using the employer’s complaint procedures until thirty-four days after the assault.261

The result reached in Greene should be far more common in cases of gradually mounting supervisory misconduct, even if the misconduct does not happen to culminate in an assault. In cases of continued lesser misconduct, summary judgment remains an inevitably ill-suited stage to apply the harm-avoidance framework adopted in Ellerth and Faragher. This inevitability stems, in part, from the inherently vague abuse threshold repeatedly endorsed by the Supreme Court as the standard of legal harm in hostile environment cases.

The Supreme Court’s hostile environment jurisprudence, as explained in more detail above, recognizes two realms of race- or sex-related misconduct in the workplace: nonactionable misconduct (that is, conduct that is “merely offensive”), and actionable misconduct (that is, conduct that is “abusive”).262 The line between the two realms, according to the Court, “is not . . .

258. As the EEOC explains: “[I]f an employee complained about harassment before it became severe or pervasive, remedial measures undertaken by the employer might fail to stop the harassment before it reaches an actionable level, even if those measures are reasonably calculated to halt it. In these circumstances, the employer will be liable . . . .” EEOC ENFORCEMENT GUIDANCE, note 77 supra, at text following note 47. 259. 164 F.3d 671 (D.C. Cir. 1999). 260. Refer to text accompanying notes 180–82 supra (stating that the defendant in Greene did not meet its burden because it neither established the point at which the harassment became severe nor when a reasonable person would have reported it). 261. Refer to text accompanying notes 177 (noting the delay in reporting) and 182–83 supra (explaining that both questions had to be resolved by a jury). 262. Refer to text accompanying notes 40–44 and 57 supra.


mathematically precise” because these realms are determined, case by case, from the perspective of a “reasonable person” given “all the circumstances.”263 Moreover, actual harm, though relevant to the abuse threshold, is not required. As Justice Scalia once begrudgingly conceded, “abusiveness is . . . the test of whether legal harm has been suffered.”264

Harm-avoidance analysis under Ellerth and Faragher thus contemplates the possible avoidance of a truly imprecise and intangible type of legal harm.265 This inherent uncertainty should make the employer’s task on summary judgment substantial,266 especially given that the employer bears the ultimate burden of proof on this issue.267 In cases of gradual-onset harassment, an employer seeking full summary judgment must affirmatively establish, as a matter of law, some precise point when an imprecise and intangible legal harm began accruing and, in relation to that point in time, another precise time frame, beforehand, during which a reasonable person necessarily would have sought and obtained successful employer intervention.268

263. Refer to notes 40, 60 and text accompanying notes 40–44 supra. 264. Refer to text accompanying note 47 supra (quoting Justice Scalia’s concurring opinion in Harris). 265. The Supreme Court did not specify precisely the nature of the “harm” to be avoided, thus leaving open the possibility that even the very first, and typically unavoidable, offensive remark or gesture inflicts compensable harm. See Grossman, supra note 69, at 707. This interpretation of the Court’s affirmative defense, however, would defeat the Court’s expectation that in some cases a harassment victim should be able to avoid all harm. Refer to notes 110–13 supra and accompanying text. The Court thus seemed to conceive of the harm to be avoided “in legal terms; that is, the ‘harm’ attaches when an actionable hostile environment matures.” Grossman, supra note 69, at 708. 266. Summary judgment is proper only if documentary evidence developed before trial reveals “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). 267. The Ellerth/Faragher Court allocated to employers the burden of “proof by a preponderance of the evidence.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (citing FED. R. CIV. P. 8(c)); accord Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). This allocation is significant because a judge considering a motion for summary judgment “must view the evidence presented through the prism of the substantive evidentiary burden.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). As one appellate court has explained: “When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial.” U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (internal quotation marks omitted). Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (holding that a moving party without the burden of proof discharges its summary judgment burden by merely “showing—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case”). 268. This statement of the employer’s burden interweaves the substantive standards of the Ellerth defense, as explained in Greene, with the procedural standards that apply when the moving party bears the burden of proof. See Greene v. Dalton, 164 F.3d 671, 674–75 (D.C. Cir. 1999). See generally Anderson, 477 U.S. at 247–48 (explaining how


The factual intensity of the first question alone should make full dismissal on summary judgment very rare. In gradual-onset cases, a judge should rarely be able to decide, as a matter of law, that the reasonable person, given all the circumstances, necessarily would have regarded the abuse threshold as crossed with the supervisor’s first antic, or the second one, or the third one, and so on.269 Indeed, deciding whether the abuse threshold was or was not crossed, as a matter of law, can be especially challenging,270 let alone deciding precisely when, as a matter of law, it was crossed. The special difficulty of such a finding on summary judgment is often glossed over by post-Ellerth courts that, for the sake of expedient application of the defense, are willing to assume the creation of a hostile environment but never even attempt to ascertain the moment of its creation.271 Yet simple logic dictates that if there is a question of fact about the point when misconduct first crossed the murky threshold of abusiveness, there necessarily is a question of fact about whether the reasonable person’s complaint would have occurred preemptively before that point, or reactively afterwards.

Even if a judge could divine, as a matter of law, the threshold moment of actionable abuse, there would remain the

application of Rule 56(c) is shaped by facts identified as material under the substantive law). 269. When analyzing a case of gradual-onset harassment, a judge must consider the accumulating effect of individual events, in context. Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999) (“[C]ourts must be mindful of the need to review the work environment as a whole, rather than focusing single-mindedly on individual acts of alleged hostility.”). 270. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 24–25 (1993) (Scalia, J., concurring) (suggesting that Title VII’s “inherently vague” abuse threshold requires that “virtually unguided juries decide whether sex-related conduct . . . is egregious enough to warrant an award of damages”); Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997) (concluding, from Justice Scalia’s concurring remarks in Harris, that “[t]here is no bright line between sexual harassment and merely unpleasant conduct so a jury’s decision must generally stand”). See also Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998) (“Once there is evidence of improper conduct and subjective offense, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury.”); DiLaurenzio v. Atlantic Paratrans, Inc., 926 F. Supp. 310, 314 (E.D.N.Y. 1996) (explaining that the determination of whether a work environment was or was not hostile is “the sort of issue that is often not susceptible of summary resolution”). See also, e.g., Phillips v. Taco Bell Corp., 156 F.3d 884, 888–89 (8th Cir. 1998) (holding that the question of whether a hostile environment had been created was “best left to the fact finder” where supervisor subjected a subordinate to five incidents of offensive conduct over a four-month time frame). But see Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (noting that “claims of employment discrimination, including sexual-harassment claims, present fact-intensive issues,” but concluding that “motions for summary judgment . . . are appropriate to ‘police the baseline for hostile environment claims’” (quoting Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 n.8 (5th Cir. 1999))). 271. Refer to notes 189–90 supra and accompanying text.


equally ethereal challenge of divining, as a matter of law, the threshold moment when, given all the circumstances, the reasonable person necessarily would have sought employer remediation of the gradually mounting misconduct—after the supervisor’s first antic? The second? The third? Juxtaposition of the two thresholds, after all, is needed for proper harm-avoidance analysis. Yet, conflation of the two thresholds is perhaps the best an employer seeking summary judgment could ever hope for. Because the mere offense/abuse threshold itself is defined from the reasonable person’s perspective, the best result an employer might achieve is a judge’s finding, as a matter of law, that the reasonable person would have complained no later than the moment the reasonable person actually perceived the supervisor’s gradually mounting misconduct as no longer merely offensive, but instead abusive.272 But even burdened with this finding, which generally should be the worst-case scenario for the nonmoving party,273 a plaintiff should not be deprived of at least nominal damages for exposure to the abusive environment between the moment it arose and the moment a promptly warned employer could have remedied it.274 To deny even the possibility of nominal damages is to find, in effect, that the reasonable person, as a matter of law, would have run to the boss’s boss to

272. An employer hoping to do better than this must establish that no rational jury could accept other coping strategies—such as ignoring the conduct—as reasonable while the conduct remained merely offensive. See Anderson, 477 U.S. at 250–51 (explaining that the standard on summary judgment “mirrors the standard for a directed verdict,” and thus a motion for summary judgment should be denied “[i]f reasonable minds could differ as to the import of the evidence”). Yet some experts say that there are many reasonable ways to cope without invoking the employer’s intervention, even after a hostile environment is created. See, e.g., Beth A. Quinn, The Paradox of Complaining: Law, Humor, and Harassment in the Everyday Work World, 25 Law & Soc. Inquiry 1151, 1163 (2000) (revealing a “form of power” in silence that “may work to bound and limit the extent of pranks” by refusing to have one’s “chain yanked”); id. at 1154 (discussing other studies of “passive strategies” that do “not appear to be unreasonable” because “research has found that victims are often worse off after a direct complaint”); Grossman, supra note 69, at 723–24 (discussing studies about the “myriad ways” victims react to harassment that “can fairly be described as rational,” including silence or going along with the joke). 273. When considering a motion for summary judgment, the court must accept all inferences drawn from the evidence “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 274. Faragher itself lends some support to this point. In that case, the plaintiff endured, without formal complaint, a five-year pattern of various sexist antics and insults from her workplace supervisors. Faragher v. City of Boca Raton, 524 U.S. 775, 782–86 (1998). At trial, the plaintiff was awarded one dollar in nominal damages, and the Supreme Court upheld that award on appeal. Id. at 786. Notably, the Court quickly dispensed with the second prong of the employer’s affirmative defense, finding any consideration of damages mitigation unnecessary “since the award to [the plaintiff] was solely nominal.” Id. at 809. The Court thus implied that, at a minimum, nominal exposure to a hostile environment was simply unavoidable. See id. at 786.


complain about conduct—for example, a few off-color remarks or jokes—that the reasonable person would not even perceive as abusive, but instead as merely offensive.275

Under the Supreme Court’s harassment jurisprudence, there simply is no third realm of non-actionable “incipient” abuse that necessarily compels the reasonable p erson, as a matter of law, to run to higher management. As explained above, a concurring judge in Indest aptly characterized the plurality judge’s “sleight-of-hand” effort to manufacture a realm of “incipient hostile environment” as “an illusion.”276 The concurring judge, however, then turned around and manufactured, on summary judgment, another variant of that illusory realm, suggesting that reasonably prompt use of employer-provided complaint procedures, in any given case, generally occurs at a point that will “likely forestall” the creation of a hostile environment.277 Apparently, the EEOC shares this illusion with the suggestion that prompt use of complaint procedures “can usually stop the

275. As one court has explained, “Though unwanted sexual remarks have no place in the work environment, it is far from uncommon for those subjected to such remarks to ignore them when they are first made.” Corcoran v. Shoney’s Colonial, Inc., 24 F. Supp. 2d 601, 606 (W.D. Va. 1998). Similarly, the EEOC explains, “An employee might reasonably ignore a small number of incidents, hoping that the harassment will stop without resort to the complaint process.” EEOC ENFORCEMENT GUIDANCE, supra note 77, at text accompanying note 85. See also Walker v. Thompson, 214 F.3d 615, 628 n.16 (5th Cir. 2000) (noting that a harassment victim’s failure to report the first few racially offensive remarks did not entitle the employer to judgment as a matter of law); Shirley Feldman-Summers, Analyzing Anti-Harassment Policies and Complaint Procedures: Do They Encourage Victims to Come Forward?, 16 LAB. LAW. 307, 309 & n.11 (2000) (discussing surveys showing that many harassment scenarios are “too minor to report” or are resolved “in other ways”). 276. Refer to notes 236, 238 supra and accompanying text. The concurring opinion, authored by Judge Weiner, thus scathingly rejected the plurality opinion’s modified defense for an employer who promptly nips in the bud a so-called “incipient hostile environment.” Indest v. Freeman Decorating, Inc., 168 F.3d 795, 798 (Weiner, J., specially concurring) (criticizing the plurality opinion’s conclusion “that this harassment’s ‘incipient’ nature—whatever that is—alleviates [the employer’s] need to satisfy the second element of the Ellerth and Faragher’s sole surviving affirmative defense”). 277. After rejecting the plurality’s modified defense for an employer who promptly nips in the bud a so-called “incipient hostile environment,” Judge Weiner decided that, as a matter of law, the employer avoided liability by “nipping . . . in the bud” supervisory misconduct before it became actionable. See Indest, 168 F.3d at 804 (Weiner, J., specially concurring). That might have been the case in Indest, given that the victimized employee had promptly complained after only five offensive words and gestures from her supervisor. Id. at 803 (Weiner, J., specially concurring). But see, e.g., Phillips v. Taco Bell Corp., 156 F.3d 884, 888 (8th Cir. 1998) (deciding that the question of whether a hostile environment had been created was best left to the factfinder where a supervisor subjected a subordinate to five incidents of offensive conduct). However, Judge Weiner went further, suggesting that “as a practical matter, inappropriate sexual conduct will virtually never rise to the level of actionability” when an employer promptly responds to a reasonably prompt complaint. Indest, 168 F.3d at 803 (Weiner, J., specially concurring).


harassment before actionable harm occurs.”278 Yet, nowhere in Ellerth or Faragher did the Court advance any such bright-line rule. Indeed, the Court merely noted that employer complaint procedures “could encourage employees to report harassing conduct before it becomes severe or pervasive.”279 Nowhere did the Court suggest that this result is the norm—certainly not as a matter of law.

The illusory rule of thumb divined by the Indest concurrence, on summary judgment, essentially says that in most cases no rational jury could ever accept as reasonable various passive strategies, such as silence, used by some employees when dealing with merely offensive supervisory misconduct. Yet passive strategies, according to some experts, can often provide a viable response to supervisory misconduct that has already crossed Title VII’s hostile-environment abuse threshold,280 let alone misconduct that remains merely offensive. Lodging anticipatory complaints, before one can even appreciate where a supervisor is going with merely offensive jokes or remarks, can be especially tricky business for subordinates in the trenches of the real working world, “a place where the law and the concept of sexual harassment can seem at times—if not completely void—at least remote and failing in promise.”281 Opting not to lodge a formal grievance about merely offensive conduct is indeed “far from uncommon.”282

The confounding challenge of deciding these matters on summary judgment highlights the especially appropriate role of the jury in deciding the impact of the Ellerth defense, if established.283 That impact, after all, is driven by not one but two

278. See EEOC ENFORCEMENT GUIDANCE, supra note 77, at notes 45–46 and accompanying text (agreeing with the concurring judge in Indest that an employer’s quick response exempts the employer from liability). 279. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998) (emphasis added). 280. Refer to notes 272, 275 (discussing passive strategies recognized by experts). See also, e.g., Watts v. Kroger Co., 170 F.3d 505, 510–11 (5th Cir. 1999) (concluding that a rational jury could accept as reasonable a victim’s decision to wait until July to report harassment that intensified the previous spring). 281. See Quinn, supra note 272, at 1153. 282. Refer to note 275 supra and accompanying text (quoting Corcoran v. Shoney’s Colonial, Inc., 24 F. Supp. 2d 601, 606 (W.D. Va. 1998)). 283. See Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998) (noting that a federal judge “usually lives in a narrow segment of the enormously broad American socio-economic spectrum, generally lacking the current real-life experience required in interpreting subtle sexual dynamics of the workplace based on nuances, subtle perceptions, and implicit communications”); Adam Stone, Unreasonable to be Uncomfortable: Summary Judgment in the Seventh Circuit After Faragher and Ellerth, 25 S. ILL. U. L.J. 201, 212 (2000) (arguing that the Supreme Court “incorporated the reasonable person standard into the Ellerth affirmative defense so that . . . legitimate questions of fact . . . could be decided by a jury of the plaintiff’s peers, not by a group of


“reasonableness” questions for which the employer bears the burden of proof: when would the reasonable person have regarded the environment as abusive, and when, in relation to that moment, would the reasonable person have sought employer intervention? Both questions hinge on a “commingling of particular conduct, words and working environments [that] may form a complex stew.”284 This factually complex stew, however, is not even sniffed by post-Ellerth courts that routinely grant full dismissal on employer summary judgment motions. Though often recognizing that plaintiffs have indeed suffered significant exposure to hostile environment harassment, these post-Ellerth courts never consider when the hostile environment accrued, and when, in relation to that moment, a reasonable person would have invoked the employer’s heavy hand. They instead assume, as a matter of law, that delayed use of employer-provided complaint procedures necessarily divests all civil rights. The result is a flagrant disregard of the Supreme Court’s unequivocal adoption of the avoidable consequences doctrine, an unjustified invasion on the province of the jury, and a significant denial of vindication for at least some undoubtedly victimized persons entitled to at least nominal damages for an initially unavoidable civil rights violation.

C. A Response to Proposed Alternatives to the Supreme Court’s Rule of Vicarious Liability: The Court’s Rule, If Properly Applied, is Perfectly Adequate for the Task

Lower court decisions in the wake of Ellerth and Faragher have produced, among commentators, calls for extreme reform. This section refutes these proposed reforms and concludes that the Supreme Court in Ellerth and Faragher offered a sensible middle-path solution to the problem—if the rule of those decisions is properly applied.

1. One Extreme: A Proposal to Delete the Second Prong of the Ellerth Defense. Eighteen months after Ellerth and Faragher were decided, three commentators, the Sherwyn group, undertook a comprehensive quantitative study of all published post-Ellerth opinions addressing employer motions for summary judgment based on the Ellerth defense.285 Among the many federal judges who presume to share the values and experiences of such a jury”); Medina, supra note 208, at 357–62 (discussing values served by having juries rather than judges address fact-sensitive questions in harassment cases). 284. Refer to note 60 supra and accompanying text (quoting Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 n.8 (5th Cir. 1999)). 285. Sherwyn, supra note 119, at 1266.


statistics produced by the Sherwyn group, perhaps two are most revealing: first, employers obtained summary dismissal on these motions, in total, over fifty percent of the time;286 second, employers found to be diligent under the Ellerth defense’s first prong obtained summary dismissal one hundred percent of the time against plaintiffs who did not use the employer’s complaint procedures.287 Underlying these telling statistics, according to the Sherwyn group, is an overall “result-oriented” bias among judges—they simply do not want to hold reasonably diligent employers liable.288

In a seemingly ironic twist, the Sherwyn group proposes a new standard of employer liability that would make the approach of result-oriented courts the rule in all cases of hostile environment harassment committed by a supervisor. Specifically, the group’s proposed standard eliminates the second prong of the Ellerth defense and allows an employer complete immunity upon proof of the employer’s reasonable efforts to prevent and correct harassment.289 This proposed standard would thus extend, to all cases, the diligent-employer immunity resurrected by the Indest-Watkins-Todd line of rapid-onset cases. Indeed, the Sherwyn group defends this line of cases.290

Defending a diligent-employer immunity, the Sherwyn group argues that the current two-pronged defense, if “mechanically” applied,291 creates a perverse incentive for employers. According to the Sherwyn group, the second prong of the defense should be dropped because it encourages employers to adopt barely adequate anti-harassment policies so that harassed employees are not excessively encouraged to timely complain about harassment, and thus are more apt to be found dilatory under

286. Id. at 1280, 1281 (using a sample size of seventy-two cases). 287. Id. at 1286. 288. Id. at 1266. 289. Id. at 1267, 1299–1300. The same standard was very recently proposed by another commentator. Daniel N. Raytis, Note, Indest v. Freeman Decorating, Inc.: Dealing with Vicarious Liability for Sexual Harassment by a Supervisor, 35 U.S.F. L. REV. 623, 648 (2001) (proposing employer immunity upon proof that “(1) the employer exercised reasonable care by creating and maintaining preventative and remedial programs relating to sexual harassment; and (2) the employer exercised reasonable care in responding to notice that harassment has occurred”). 290. See Sherwyn, supra note 119, at 1301–02. 291. The Sherwyn group impugns as mechanical the application of the Ellerth defense in Moore v. Sam’s Club, 55 F. Supp. 2d 177 (S.D.N.Y. 1999). Sherwyn, supra note 119, at 1292–93. As explained above, the court in Moore gave straightforward application to both prongs of the defense, and thus held that the plaintiff’s reasonably prompt use of company complaint procedures prevented use of the defense by an employer that presumably exercised reasonable care to combat harassment. See Moore, 55 F. Supp. 2d at 192–93.


the second prong of the defense.292 To illustrate the point, the Sherwyn group offers a hypothetical scenario involving two chain restaurants, Company A and Company B, both of which distribute to their respective stores reasonable policies against harassment. The scenario then continues:

In addition, Company B has a “1-800” number for employees to report harassment twenty-four hours-a-day. Company A has no such hotline. The night-managers of the stores are best friends who share the odious belief that one of their jobs’ “benefits” includes the license to sexually harass their respective employees. Despite corporate policy strictly and clearly prohibiting such behavior, each manager sexually harasses one employee for one month. Both employees are equally upset by the harassment, but fear reporting it. The employee from Company A sees no way to address the problem, so she quits. The employee from Company B also contemplates quitting. She then realizes, however, that there is another option: Company B employee calls the “1-800” number and files a complaint. . . . Company B [promptly] conducts a thorough investigation and fires the manager. . . . The two employees each subsequently file lawsuits. Under . . . Ellerth and Faragher, Company A would be able to satisfy the new affirmative defense because the employee never complained. It would escape liability entirely[,] . . . however, Company B would be liable.293

Based on this analysis of the hypothetical scenario, the Sherwyn group offers the following commentary:

One conclusion from this scenario is clear: employers should exercise reasonable care by instituting a policy, and then hope that no one uses it. Moreover, employers attempting to limit their liability should exercise reasonable care, but not too much care because employers can be punished when employees feel comfortable enough to use the procedures. Thus, employers should not provide “1-800” numbers . . . . [Likewise], extra effort by the employers to prevent harassment (such as elaborate and expensive so-called “sexual harassment training” for employees) might work against companies under the affirmative defense

292. Sherwyn, supra note 119, at 1299. The other recent commentator who advances a diligent-employer immunity also shares the view that the Ellerth defense creates a perverse incentive for employers. Raytis, supra note 289, at 647 (arguing that the Ellerth defense “may actually deter employers from creating effective grievance policies, because the more effective a company policy is in encouraging an employee to report harassment, the less likely an employer will be able to prove the second element of the affirmative defense”). 293. Sherwyn, supra note 119, at 1293.


because employees at those companies may have a greater propensity to report, which will preclude the employer from satisfying the defense. Unfortunately, a standard that provides an incentive for employers to devise a subtle system that satisfies the courts but discourages complaints, does not, we believe, effectively lead to the ultimate goal of eliminating sexual harassment in the workplace.294

At least equally unfortunate, I submit, is the Sherwyn group’s proposed treatment of victimized employees who suffer sudden and unavoidable abuse, such as the rape that occurred in Watkins.295 Without the Ellerth defense’s second-prong requirement that the diligent employer further prove the employee’s negligence, such victims are denied compensation under Title VII.296 But even putting aside that grave injustice, there are some fundamental flaws in the Sherwyn group’s “mechanical” application of the Ellerth defense.

To begin with, straightforward application of the defense results in equal liability for both Company A and Company B. The Company B employee who used the “1-800” number presumably acted in a reasonably prompt manner to prevent further harm,297 but suffered compensable harm that the reasonable person would not have necessarily avoided before making the call. The “1-800” call itself also apparently marks, as to the non-complaining Company A employee who suffered identical mistreatment, the point in time that a reasonable person necessarily would have complained—making any prior abuse unavoidable, and thus compensable, in that case as well. So there is nothing inconsistent about the proper results in these cases. If the Ellerth defense is properly applied, both employees recover damages for the exact same period of abuse that a reasonable person would not have necessarily avoided.

The Sherwyn group’s erroneous analysis of its own hypothetical scenario arises out of the same misguided assumption that plagues many post-Ellerth decisions—an assumption that the Company A employee’s failure to complain necessarily results in a complete bar to recovery.298 That is

294. Id. at 1293–94. 295. Refer to notes 140–45 supra and accompanying text. 296. See Sherwyn, supra note 119, at 1301 (suggesting that a tort action against the rapist is an adequate substitute for employer liability under Title VII). 297. For the sake of discussion, I accept as true the Sherwyn group’s assumption about the timing of the reasonable person’s response to the hypothetical harassment. Generally speaking, however, I would leave determinations about the timing of the hostile environment’s accrual, and the timing of the reasonable person’s response to it, for the jury. Refer to text accompanying notes 283–84 supra. 298. Refer to text accompanying note 293 supra (assuming that Company A “would


simply not how causal apportionment under the Ellerth defense’s second prong is supposed to work. Dilatory plaintiffs are not supposed to be punished with a knee-jerk divestiture of initially unavoidable damages.299

Furthermore, application of the Ellerth defense, as written, gives employers plenty of incentive to go the extra mile to combat harassment. They are not discouraged from offering “1-800” harassment hotlines, sensitivity training, and the like. An employer who offers such added safeguards creates for itself a more favorable position under the Ellerth-endorsed avoidable-consequences analysis. Extra measures give a jury added reason to find that the reasonable person, in the plaintiff’s position, would have sought employer intervention before a supervisor’s misconduct reaches the point of actionable abuse, and thus added reason to deny employer liability altogether.300 Conversely, lack of precautions would give a jury added reason to find that a reasonable person might not complain until after he or she perceives the environment as abusive—a result that, in turn, assures the availability of at least nominal damages for initial exposure to a hostile environment.301 The Sherwyn group errs with its perverse-incentive argument because, once again, they completely overlook the avoidable consequences doctrine that animates the second prong of the Ellerth defense.

One argument raised by the Sherwyn group, however, has some initial appeal. It suggests that deletion of the second prong would eliminate judgment calls about the reasonableness of the employee’s conduct and thus show more sensitivity to victimized employees who do not complain about harassment to employers.302 But this sensitivity comes at a high price, for the victimized employee recovers nothing unless the employer’s conduct is found wanting. Moreover, an entirely employer-focused defense sends a perverse message to harassment victims: the law imposes on you absolutely no expectation to mitigate your harm—and possibly eventual harm to others—when the

escape liability entirely”). 299. Refer to note 172 supra and accompanying text (discussing the Supreme Court’s instruction that a dilatory plaintiff should be able to recover damages that were unavoidable). 300. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998) (noting that effective procedures “could encourage employees to report harassing conduct before it becomes severe or pervasive”). Accordingly, extra precautions are not merely “politically fashionable,” as one post-Ellerth court has suggested. See Jones v. USA Petroleum Corp., 20 F. Supp. 2d 1379, 1386 (S.D. Ga. 1998) (referring to an employer’s investment in sensitivity training as “politically fashionable”). 301. Refer to notes 272–75 supra and accompanying text. 302. Sherwyn, supra note 119, at 1301.


employer has in fact offered a reasonable complaint procedure. These are not the lessons of Ellerth and Faragher.

2. The Other Extreme: A Proposal to Impose Automatic Liability in All Cases. While the Sherwyn group sought to further advance the pro-employer trend developing among post-Ellerth courts, another commentator, Professor Joanna L. Grossman, was railing against the trend. Professor Grossman believes, as I do, that post-Ellerth courts unduly punish plaintiffs who do not use employer-provided complaint procedures,303 treating them as undeserving of compensation “regardless of whether the hostile environment matures before the plaintiff has an opportunity to complain.”304 Even more egregious, she explains, is the willingness of some courts, such as the Fifth Circuit in Indest, to “toss[] the entire Faragher/Ellerth framework aside” and entirely deny recovery to innocent plaintiffs for suddenly imposed abuse that the employer, after the fact, remedies upon notice.305 Professor Grossman criticizes these trends as “[g]ranting the employer a windfall”306 opportunity to avoid liability under an affirmative defense now so distorted that it resembles the immunity that the common law once extended to dog owners. As she explains: “[E]mployers are now liable for the hostile environment created by their supervisors, for the most part, only after being given a chance to react and failing to do so. In other words, for employers of harassing supervisors, as for the dog owners that preceded them, the first bite is free.”307

Seeking to eliminate this free first bite, Professor Grossman proposes a legislative amendment to Title VII. Under this proposed amendment, “all plaintiffs who are subjected to a legally hostile environment by a supervisor would be entitled to a finding of liability against the employer.”308 The proposal contemplates truly automatic liability, though damages may be reduced or eliminated for failure to mitigate.309 Even if the employer was especially diligent in combating harassment, and even if the plaintiff should have avoided all harm, the plaintiff, under this proposal, is entitled to a finding of liability against the employer.310 This finding, in turn, would entitle the plaintiff, at a

303. Grossman, supra note 69, at 722–23. 304. Id. at 709. 305. Id. at 712. 306. Id. at 722. 307. Id. at 671. 308. Id. at 736. 309. Id. at 735–36. 310. See id. at 739–40 (“The employer should be held liable based solely on the


minimum, to an award of attorneys’ fees allowed prevailing plaintiffs under a Title VII fee-shifting provision311 and perhaps declaratory or injunctive relief.312

Professor Grossman argues that a rule of automatic liability would assure compensation of harassment victims for unavoidable supervisory abuse.313 In addition, she asserts that such a rule would eliminate insensitive treatment of post-Ellerth plaintiffs who do not use employer-provided complaint procedures, often for reasons that many scholars regard as rational.314 She adds that “victim complaint and employer response, two factors the Court considers in determining liability, have no bearing on whether the harassing supervisor was aided by the agency relationship in accomplishing the harassment. They should, consequently, have no effect on whether the employer is vicariously liable.”315 Much more relevant, in Professor Grossman’s view, is the employer’s ability to control the risk of harassment with personnel selection, training, and monitoring procedures.316 She also suggests that employers generally are in a position to absorb losses caused by harassment through standard insurance and risk spreading.317

Many of the same arguments have animated this article’s critique of post-Ellerth caselaw. Post-Ellerth courts, overly solicitous of “innocent” employers, have undoubtedly granted some employers a windfall. Utterly disregarding straightforward application of the Ellerth defense, post-Ellerth courts have, conversely, undoubtedly stripped Title VII of its compensatory agenda for at least some plaintiffs who suffered unavoidable abuse.

Professor Grossman’s solution, however, would guarantee victory for all plaintiffs and thus would, in some cases, replace one windfall with another. For the vast majority of problematic occurrence of the harassment at the hands of an agent.”). 311. Id. at 734 (arguing that findings of non-liability “deprive plaintiffs, who have suffered proven discrimination under Title VII, of their statutory right to attorneys’ fees”). 312. Id. at 721 (arguing that a finding of non-liability “deprives the victim . . . of any declaratory or injunctive relief”). Another commentator, Professor Theresa M. Beiner, proposes a rule of automatic liability that is even more expansive. Under her proposed rule, the Ellerth defense could be asserted only to prevent liability for punitive damages; compensatory damages could be recovered in every case, without regard to the plaintiff’s failure to mitigate. Theresa M. Beiner, Sex, Science and Social Knowledge: The Implications of Social Science Research on Imputing Liability to Employers for Sexual Harassment, 7 WM. & MARY J. WOMEN & L. 273, 332 (2001). 313. Grossman, supra note 69, at 721. 314. Id. at 724. 315. Id. at 729. 316. Id. at 733–34. 317. Id. at 734.


post-Ellerth cases, we will simply never know in which cases compensation was in fact unjustly denied because, invariably, these post-Ellerth courts never gave a jury the opportunity to apply the Ellerth defense. That these courts, instead, misused summary judgment proceedings to distort the defense in favor of employers does not mean that, from now on, all plaintiffs should be entitled to a finding of liability without input from the jury. Nor does a willingness to distort the defense signal that there is necessarily something wrong with the defense and that it is in need of amendment.

The Supreme Court’s decisions in Ellerth and Faragher already provide an amendment of sorts to Title VII, and it is an amendment worthy of straightforward application. Stepping up to its quasi-legislative role, the Court, for all practical purposes, enacted a gap-filling statute to fill a void of black letters on the subject of employer liability for harassment committed by supervisors.318 The new black-letter law guarantees victory to neither party. Instead, it demands a sensitive case-by-case assessment of preventive action taken by both the employer and the employee to achieve, in the Court’s view, optimal interplay between two critical Title VII objectives—prevention of harassment319 and compensation for victimized employees.320 Largely misplaced is the quibbling about which of the two aims is paramount.321 The Court’s new rule of vicarious liability, properly applied, accommodates both aims with a limited range of truly vicarious liability, that is, employer liability without fault for harm that the plaintiff could not have avoided through reasonable care.322 To be sure, the balance struck by the Court’s rule can be maintained when liability is imposed despite employer diligence, but only if the plaintiff suffered unavoidable harm. Lower courts that frustrate this balance in favor of diligent employers do not need a new rule that frustrates the balance in the opposite direction for plaintiffs who have negligently failed to avoid harm. These courts simply need to be reversed on appeal.

The simple rule adopted in Ellerth and Faragher, when properly applied, should accomplish at least some of the results Professor Grossman seeks with a rule of automatic liability. Her

318. Refer to text accompanying note 220 supra. 319. Refer to note 117 supra and accompanying text. 320. Refer to note 118 supra and accompanying text. 321. See Grossman, supra note 69, at 720–21 (arguing that earlier Supreme Court statements regarding the importance of Title VII’s compensatory aim should take precedence over the Court’s later statements about Title VII’s primary aim at deterrence). 322. Refer to text accompanying notes 116, 200 supra.


rule, after all, allows for mitigation, as does the second prong of the Ellerth defense.323 The only substantive difference between Professor Grossman’s mitigation rule and the Supreme Court’s mitigation rule is that the Court’s rule can result in complete liability avoidance if the plaintiff should have avoided all harm.324 But how often, and under what circumstances, will properly instructed juries actually opt for complete liability avoidance? In rapid-onset cases, will properly instructed juries routinely deny recovery for initially unavoidable abuse simply because the employer subsequently intervened promptly upon notice? In gradual-onset cases, will properly instructed juries routinely find that plaintiffs who delay use of the employer-provided complaint procedures have acted unreasonably? Will they, in turn, routinely treat unreasonable delays as grounds for denying plaintiffs even nominal damages for initial exposure to an abusive environment between the moment it arose and the moment a promptly warned employer could have remedied it? We should insist on answers to these questions before tossing aside the Supreme Court’s three-year-old rule in this area.

V . CONCLUSION

Hostile environment workplace harassment is one of those provocative subjects that evokes a large continuum of reactions in our heterogeneous society. When it first ventured into these inherently uncertain waters, the Supreme Court steered a course down the middle, opting to define actionable abuse from the reasonable person’s perspective. Later, on the subject of employer liability for this intangible harm, the Supreme Court continued to steer a middle course, again looking to the reasonable person’s perspective. The Court decided that employer liability for intangibly abusive supervisory harassment should depend on the reasonableness of the employer’s efforts to combat harassment and the reasonableness of the employee-victim’s efforts to avoid it. If an employer can prove both its reasonableness and the employee’s unreasonableness, we are again supposed to look to the reasonable person to determine how much harm the employee should have avoided—all or some—and adjust liability or damages accordingly.

Because this middle path repeatedly relies on reasonableness inquiries, its destiny in most cases should be the jury. Yet, many lower courts and commentators seem determined

323. Refer to note 113 supra and accompanying text. 324. Refer to note 113 supra and accompanying text.


to deny this destiny. They depart far and wide from the Supreme Court’s middle path in search of clearer waters: at one extreme, a summary judgment safe harbor for diligent employers; at the other, automatic victory for victimized employees. In the middle remains the jury. Still waiting for its day in court.

Documents

ARTICLE - Houston Law Review