Operating in an Empirical Vacuum: The Ellerth and Faragher Affirmative Defense

Abstract

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. …