Operating in an empirical vacuum: the Ellerth and Faragher affirmative defense.

• Author: Lawton, Anne

"Oh dear, what nonsense I'm talking." (1)

There is a classic management article by Professor Steven Kerr entitled On the Folly of Rewarding A, While Hoping for B. (2) Its thesis is simple: reward systems often are structured so that they discourage desired behavior and encourage unwanted behavior. The federal courts' decisions on the affirmative defense in cases of sexual harassment by supervisors illustrate Kerr's thesis.

In Burlington Industries v. Ellerth, (3) and Faragher v. City of Boca Raton, (4) the Supreme Court created a two-pronged affirmative defense to employer liability in certain cases of workplace harassment by supervisors. The Court did so in order to effectuate what it identified as Title VII's "primary objective"--the prevention of illegal workplace discrimination, including sexual harassment. (5) The affirmative defense requires an employer to prove both that (1) it exercised reasonable care to prevent and correct workplace harassment ("prong one"), and (2) the victim employee unreasonably failed to take advantage of the preventive and corrective mechanisms established by the employer ("prong two"). (6) If an employer can satisfy the affirmative defense, it can limit or altogether avoid liability for the harassing conduct of its supervisors. (7) By offering employers the possibility of limited or no liability for workplace harassment by supervisory personnel, the Court hoped to encourage employers to take steps to prevent and correct harassing behavior, for example, by adopting effective grievance procedures. (8) Thus, in Ellerth and Faragher, the Court created a reward system which ties an employer's liability to its efforts to reduce the incidence of workplace harassment.

The problem is that the lower federal courts have interpreted the elements of the affirmative defense so as to reward employers for engaging in behaviors that have little effect on the incidence of workplace harassment. The courts reward employers for developing and distributing nicely worded harassment policies and procedures and, in some cases, providing sexual harassment training to their employees. The empirical literature does not support the federal courts' assumption that paper policies and procedures, even when coupled with training, deter sexual harassment in the workplace. Rather than providing employers with incentives to address the predictors of workplace harassment, such as the organization's culture and the job gender context, (9) the courts reward employers for "file cabinet compliance."

The fault lies not only with the lower federal courts' implementation of the affirmative defense, but also with the Supreme Court's articulation of the defense itself. The success of the affirmative defense as a means to increase deterrence of workplace harassment rests in part on behavior that occurs infrequently--formal reporting of sexual harassment. By hinging liability on a response to harassment that is uncommon, especially in cases involving supervisors, the Court created a legal rule that from its inception was unlikely to promote the stated goal of prevention. In addition, the limited guidance offered by the Court on what constitutes prevention, coupled with the Court's emphasis in Ellerth and Faragher on policies and procedures, paved the way for the lower federal courts to interpret the affirmative defense in ways that further undermine, rather than facilitate, the goal of deterring sexual harassment in the workplace.

The end result is a system in which an employer is able to limit its liability for sexual harassment by doing little more than creating and distributing an anti-harassment policy and grievance procedure that allows employees to bypass a harassing supervisor. There is little incentive for an employer to keep records of harassment complaints, to implement post-complaint follow-up procedures, to periodically assess and revise the firm's anti-harassment policies and procedures, or to evaluate supervisory personnel on their compliance with and implementation of the employer's policies and procedures. If the employer can escape liability for workplace harassment by doing less rather than more, why should it expend the time and energy in developing evaluative mechanisms that actually may expose it to greater liability?

This Article, through an analysis of the federal court decisions issued since Ellerth and Faragher, explores the incentives that the federal courts are creating for employers to prevent and correct workplace harassment. In Part I, I begin with a brief overview of three Supreme Court decisions on employer liability for supervisory harassment--Meritor Savings Bank v. Vinson, (10) Ellerth, and Faragher. I conclude that the affirmative defense rests on two flawed assumptions, which made it unlikely that the defense would serve the Court's intended goal of deterring workplace harassment. Part II explains how I arrived at the body of lower federal court cases on which the Article is based. In Part III.A, I examine the lower federal courts' analysis of employers' prevention efforts and conclude that the courts are creating incentives for employers to engage in conduct that has no empirically documented impact on the prevention of sexual harassment in the workplace. In addition, the courts' focus on paper policies and procedures impermissibly shifts the burden of proof on prevention from the employer to the employee, contrary to the Supreme Court's decisions in Ellerth and Faragher. Part III.B of the Article critiques the federal courts' analysis of the reasonableness of employee decisions not to report sexual harassment using their employers' internal grievance machinery. The courts "punish" harassment victims by relieving employers of liability without evaluating the reasonableness of victim responses, either in the context of the empirical literature or the facts of the individual case. Moreover, by doing so, the courts once again improperly shift the burden of proof on reasonableness from the employer to the employee. In Part IV of the Article, I conclude with some recommendations for change, keeping in mind that the liability paradigm itself is fundamentally flawed.

1. THE LIABILITY TRILOGY

   In Ellerth and Faragher, the Supreme Court created an affirmative defense to employer liability for certain cases of supervisory sexual harassment, (11) The Court concluded that an affirmative defense would further Title VII's primary goal of prevention. (12) By allowing employers to limit their liability through invocation of the affirmative defense, the Court hoped to encourage employees to report harassment before it became severe or pervasive, thereby "serv[ing] Title VII's deterrent purpose." (13)

   In order to understand why the affirmative defense exists, however, it is necessary to go back to the Supreme Court's earlier decision in Meritor. It is in Meritor that the Court lays the groundwork on which the affirmative defense rests. (14)

   1. Meritor

      Meritor is an interesting case. By recognizing that a claim based on a hostile work environment is actionable under Title VII, the Court expanded the concept of sexual harassment beyond the more limited category of quid pro quo harassment, (15) which occurs much less frequently in the workplace than hostile environment harassment. (16) At the same time, however, the Court rejected a rule of automatic liability for hostile environment cases involving supervisors and, while not a model of clarity, the opinion suggested that liability hinged on notice to the employer of the harassing conduct, a requirement at odds not only with the EEOC Guidelines at the time, (17) but also with the way in which most victims respond to sexual harassment. (18)

      Meritor involved a claim by Mechelle Vinson against her employer Meritor Savings Bank ("Bank") based on what Vinson claimed was constant sexual harassment by Sidney Taylor, a Bank vice president and Vinson's supervisor. (19) After an eleven-day bench trial, the district court concluded that Vinson was neither "the victim of sexual harassment [nor] of sexual discrimination." (20) Though unnecessary to its decision, the district court also found that the Bank could not be held liable for any harassment because it was without notice since no employee, including Vinson, had ever filed a sexual harassment complaint against Taylor. (21)

      The Court of Appeals for the D.C. Circuit reversed and remanded the case, concluding that the district court had failed to consider whether Vinson had made out a claim for sexual harassment based on a hostile work environment. (22) In addition, the Court of Appeals held that an employer's notice of a supervisor's harassment is irrelevant to liability (23); employers were strictly liable for such harassment. (24)

      The Supreme Court rejected both the district court's and the Court of Appeals's liability formulations. (25) First, the Court concluded that by defining the term "employer" to include "agent" in Title VII, Congress "evince[d] an intent to place some limits on the acts of employees for which employers under Title VII [could be] held responsible." (26) The Court explained that common law agency principles, while not "transferable in all their particulars to Title VII," (27) should guide courts when evaluating claims of employer liability for sexual harassment by supervisors. With little explanation other than a general citation to [subsection] 219-237 of the Restatement (Second) of Agency, which govern a principal's liability for its agents' torts against third parties, the Court held that the Court of Appeals erred in setting forth a rule of automatic liability for supervisory sexual harassment. (28)

      Second, the Court also rejected the Bank's contention (and the district court's conclusion) that the Bank escaped liability because Vinson had failed to use its anti-discrimination policy and procedure. (29) The Supreme Court explained that the Bank's policy and procedure were...