Gender Myths v. Working Realities: Using Social Science to Reformulate Sexual Harassment Law

By Theresa M. Beiner | Go to book overview

5
Reality Bites the Ellertb/Faragber
Standard for Imputing Liability
to Employers for Supervisor
Sexual Harassment

Perhaps the legal standard that is most out of synch with the reality of sexual harassment in the workplace is the standard for imputing liability to the employer. It is not enough for a target to prove the harassment met the “severe or pervasive” standard. She also must establish that the employer is liable for this workplace conduct. The Court's decisions in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, while theoretically creating an affirmative defense for employers in cases of supervisory harassment, result in a significant burden on the harassed employee to come forward and report the harassment as early as possible. This might make sense in terms of giving the employer the opportunity to nip the harassment in the bud, but it does not reflect the manner in which many targets respond to harassment. Instead, the courts appear to be engaging in “assumptions” about the way women “should” or “ought” to behave. In addition, these cases encourage and credit employer efforts to formulate sexual harassment policies and address harassment in the workplace through training and remedial measures. Yet, there is little evidence that such employer efforts are effective. Once again, courts assume an employer's attempts will be effective in remedying or preventing harassment when there is little empirical support for this position. The result is that the legal standards and the factual assumptions that underlie those standards, rather than tending to eliminate harassment in the workplace, amount to mere window dressing.

In this chapter, I begin by discussing the current legal standards for imputing liability to employers for the harassing acts of supervisors, focusing

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