Acknowledging Informal Power Dynamics in the Workplace: A Proposal for Further Development of the Vicarious Liability Doctrine in Sexual Harassment Cases
In this chapter, the author evaluates courts’ application of the United States Supreme Court’s affirmative defense doctrine in hostile environment sexual harassment cases, as articulated in Burlington Industries, Inc. v. Ellerth, 524 US 742 (1998). This doctrine provides that employers may avoid vicarious liability 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/himself of these procedures. The author argues that the courts’ current articulation of the affirmative defense doctrine contravenes the policy underlying recognition of hostile environment sexual harassment as a form of sex discrimination. Using expert research on organizational dynamics to argue that courts’ application of the affirmative defense nullifies sexual harassment law concern for the operation of informal power dynamics in the workplace, the author proposes an alternative approach that requires the court to perform a “searching” inquiry and factual examination of the power dynamic of litigants’ workplaces in order to determine if supervisors, acting as agents, have used employer-granted power to commit sexual harassment sufficiently severe as to constitute a hostile work environment. When the court finds evidence of such agency, employers have failed to meet the burden of proof under the Supreme Court’s affirmative defense standard and can be held vicariously liable for the sexual harassment perpetrated by their supervisors.