In this Article, I evaluate courts' application of the U.S. Supreme Court's affirmative defense doctrine in hostile environment sexual harassment cases. This doctrine provides that employers may avoid being held vicariously liable for hostile environment sexual harassment by supervisors if they can establish that: (1) they have taken reasonable measures to prevent sexual harassment, including setting up adequate complaint procedures, and (2) the employee who suffered sexual harassment unreasonably failed to avail herself of these procedures. The affirmative defense doctrine is U.S. Supreme Court-made law, developed in a series of cases discussed below.
The affirmative defense doctrine has merits. As the Court and commentators have correctly pointed out, the availability of an affirmative defense to employer vicarious liability in supervisor hostile environment sexual harassment cases serves important policy objectives. Chief among those objectives is the creation of incentives for employers to design and implement policies that will deter and punish sexual harassment at the workplace level, avoiding the need to involve the courts. (1) The power of the Court to shape employers' policies through the law is demonstrated by the cottage industry of sexual harassment training that arose after the Supreme Court articulated the affirmative defense doctrine, through which employment lawyers and other consultants have done good business advising employers about implementing sexual harassment policies. (2) Having been involved in some of that work myself, I have no complaints about the incentive-creating dimension of the Court's affirmative defense doctrine. On the other hand, I have increasing reservations about the way the courts have applied the affirmative defense doctrine in subsequent case law, and that is my topic here.
I will argue that the courts' current, extremely confused and contorted articulation of that doctrine contravenes the policy underlying recognition of hostile environment sexual harassment as a form of sex discrimination. I do so by discussing in detail several recent examples of courts' application of the affirmative defense doctrine. I then draw on the excellent, burgeoning literature on sexual harassment law and on the research of experts who study organizational dynamics to argue that courts' application of the affirmative defense writes out of sexual harassment law concern for the operation of informal power dynamics in the workplace. I propose an alternative approach that would call on courts to engage in a more searching inquiry into the ways in which power dynamics in the workplace may prevent persons who have suffered sexual harassment from making effective use of sexual harassment policies. Stated more simply, my argument is that employers should be held vicariously liable for the actions of employees who commit sexual harassment that is sufficiently severe to constitute hostile environment sex discrimination when those employees have abused the power granted to them by their agency relationship to the employer. If employees abuse power granted to them by their employer by carrying out sexual harassment--by credibly threatening retaliation, ordering an employee to carry out particular acts or otherwise exercising credible intimidation tactics--they have been "aided in the agency" in carrying out their harassment by the power conferred on them by their employer. To determine whether a harasser has used employer-granted power in this way, courts should place far greater weight on evidence reflecting the power dynamics in particular workplaces.
To be sure, the approach I advocate demands a far more searching inquiry than that courts typically engage in when considering employers' affirmative defenses. But it conforms to the Supreme Court's test in Ellerth, which asks whether the employer's sexual harassment prevention policies are effective and whether the plaintiff's failure to report or otherwise avoid the harassment is reasonable. …