Employer Liability for Employee Sexual Harassment: A Judicial Policy‐Making Study

• Published date: 01 March 2000
• DOI: http://doi.org/10.1111/0033-3352.00071
• Author: Paul S. Greenlaw,Robert D. Lee, Jr.
• Date: 01 March 2000

Employer Liability for Employee Sexual Harassment 123

Robert D. Lee, Jr.

Paul S. Greenlaw

The Pennsylvania State University

Employer Liability for Employee Sexual

Harassment: A Judicial Policy-Making Study

Since 1964 and 1972 when Congress passed key legislation concerning sex discrimination, the

courts have been left to fashion policies on sexual harassment in employment. In 1998, the Su-

preme Court issued four major decisions in this area, one dealing with suits against school dis-

tricts, one involving same-sex discrimination, and two pertaining to the application of common

law to employer liability in sexual harassment cases. The ruling in the first case is at odds with the

others, suggesting that Congress may need to intervene. The other three pose a series of complex

issues that could benefit from congressional action and administrative guidance from the Equal

Employment Opportunity Commission. The Court’s rulings have answered some legal questions,

but posed others that will produce extensive litigation in coming years.

Robert D. Lee, Jr., is professor of hotel, restaurant, and recreation manage-

ment and professor of public administration at The Pennsylvania State Uni-

versity, University Park. He is coauthor of

Public Budgeting Systems, 6th ed.

(Aspen Publishers) and author of

Public Personnel Systems, 3rd ed.

(Aspen

Publishers).

Paul S. Greenlaw received his Ph.D. with a major in public personnel ad-

ministration from the Maxwell School of Citizenship and Public Affairs, Syra-

cuse University. He has taught American government at Duke University and

has worked in the personnel field in industry. He is a professor of manage-

ment (retired) at Penn State where he specializes in computer educational

simulation and equal employment opportunity law. He is the author or coau-

thor of thirteen books and over seventy articles.

Since 1991, sexual harassment has been one of the most

hotly debated topics pertaining to employment discrimi-

nation. In that year, the Navy’s Tailhook convention in Las

Vegas revealed long-standing harassment of women naval

officers. Also in 1991, the confirmation hearings for

Clarence Thomas to become an associate justice on the

Supreme Court raised the possibility that he had engaged

in sexual harassment while at the Department of Educa-

tion and the Equal Employment Opportunity Commission

(EEOC). Later, Senator Bob Packwood was forced to re-

sign due to substantiated claims of his having engaged in

sexual harassment in numerous situations. President

Clinton faced charges that he sexually harassed state em-

ployee, Paula Jones, while he was governor of Arkansas.

In the latter half of the 1990s, the Defense Department, in

particular the Army, received negative notoriety about pos-

sible widespread sexual harassment. In 1998, Mitsubishi

Motor Manufacturing agreed in an out-of-court settlement

to pay $34 million in damages to employees who were

victims of widespread sexual harassment (EEOC 1998).

The courts have been struggling to determine when

employers should be responsible for sexual misdeeds car-

ried out by supervisors and lower-level employees. In do-

ing so, the courts have been left to fashion policies with-

out much guidance from Congress. In 1998, the Supreme

Court issued four decisions involving sexual harassment.

This article examines these new “policy directives” of the

Court, assesses the current status of sexual harassment law

in light of the decisions, identifies where confusion still

exists as to when employers can be held liable for sexual

harassment, and considers whether congressional and/or

administrative action is needed.

Overview

The four cases raised these questions about the liability

of employers for sexual harassment:

• Is a school district liable for a teacher engaging in sex

with a high school student when school officials were

unaware of the sexual conduct? This question was asked

in Gebser v. Lago Vista Independent School District (106

F.3d 1223 [5th Cir. 1997]; 118 S.Ct. 1989 [1998]).

• Is an employer liable when a man is sexually harassed

by his male boss and a male coworker? In other words,

is same-sex discrimination proscribed under the law?