Hastings Journal on Gender and the Law


In pair of 1998 cases, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the U.S. Supreme Court crafted a new framework for employer liability in sexual harassment cases. Thenceforth, employers were to be strictly liable for the harassment of employees by supervisors, but employers would also be able to employ an affirmative defense if (a) the employer acted reasonably in preventing and correcting harassment and (b) the employee acted unreasonably in avoiding or stopping the harassment. The Court marketed this new framework as a compromise between the competing values of eliminating harassment (hence, strict liability) and avoiding punishment without fault (hence, the affirmative defense). Unfortunately, lower courts implicitly and explicitly perverted the carrot-and-stick compromise into merely a carrot approach. Worse, the carrot of liability avoidance has become freely available to employers who simply demonstrate the existence of corporate policies. This Note examines the historical and analytical context for the Ellerth/Faragher decisions, surveys lower court decisions systematically distorting that framework, and finally discusses opportunities for reform, especially noting California's simple alternative liability framework.