Abstract

In this Article I assess courts' application of the U.S. Supreme Court's affirmative defense doctrine in hostile environment sexual harassment cases. This doctrine provides that employers may avoid being held vicariously liable for hostile environment sexual harassment by supervisors if they can establish that: (1) they have taken reasonable measures to prevent sexual harassment, including setting up adequate complaint procedures, and (2) the employee who suffered sexual harassment unreasonably failed to avail herself of these procedures. This affirmative defense doctrine is U.S. Supreme Court-made law, developed in a series of cases as I will discuss below. The Court, and commentators such as Susan Sturm and others, argue that the design of such an affirmative defense to employer vicarious liability in supervisor hostile environment sexual harassment cases serves important policy objectives. Chief among those objectives is the use of legal rules to create incentives for employers to design and implement sexual harassment policies that will deter and punish sexual harassment at the workplace level, avoiding the need to involve the courts. Institution of sexual harassment policies helps insulate employers from lawsuits, or, if lawsuits are filed, helps ensure that employers will not be held vicariously liable for the actions of their employees. In this paper I do not take issue with the incentive-creating aspect of the Court's affirmative defense doctrine. On the other hand, I document cause for reservations about the way the affirmative defense doctrine has developed. I show that the current, extremely confused and contorted articulation of that doctrine by the courts has increasingly moved away from the original understanding of the purposes and policy underlying recognition of sexual harassment as a form of sex discrimination. To do so I survey the case law, discussing several examples of the courts' application of the affirmative defense doctrine in considerable factual detail in order to capture the application of law to facts. I then draw on the excellent, burgeoning general literature on sexual harassment law and on the research of experts who study organizational dynamics to argue that these courts' application of the affirmative defense writes out of sexual harassment law concern for crucial issues concerning the operation of informal power dynamics in the workplace. I propose an alternative approach that would call on courts to engage in more searching scrutiny on these questions, and demonstrate that this proposal is a feasible one by pointing to examples of courts that have engaged in such searching, fact-sensitive analyses.