New Twist in Sexual Harassment Cases: Faragher and Ellerth

Abstract

Employer liability for supervisory conduct in the area of sexual harassment was addressed by the Supreme Court in 1998 and by the EEOC in 1999. The Equal Employment Opportunity Commission reports that sexual harassment remains a pervasive problem in the American workplace. The number of sexual harassment charges filed with the agency and its state counterparts more than doubled between 1991 and 1998 [1]. In 1998 the Supreme Court rendered two significant decisions that changed the focal point in such sexual harassment cases. This article discusses those decisions, their impact on the landscape of sexual harassment law, and possible employer responses. OVERVIEW OF THE LAW OF SEXUAL HARASSMENT Apparently no employment sector is exempt from allegations of harassing behavior. Even the annual report on Texas state judicial conduct for 2000 contained two instances of employer harassment. An appeals court judge was issued a public warning for kissing an employee during court hours, an action that was uninvited and unwelcome. Further, a special master was issued a public reprimand for making an employee participate in the following game as a condition of employment. The judge “would bind the employee’s hands behind her back, tie her ankles, and gag her with a scarf. While the employee was bound and gagged, the judge would watch scenes from his personal collection of ‘bondage’ videos” [2, p. 305].