Abstract
In the seventeen years since the Court's initial pronouncement, and Justice Thomas' denouncement, of the Ellerth/Faragher affirmative defense, a split has materialized among the United States courts of appeals as to how to correctly apply the defense. Namely, as the case law below illustrates, there is disagreement as to whether both prongs of the defense are necessary in cases dealing with a single, severe instance of sexual harassment. While these "single, severe" cases sparked the debate, they also highlighted a larger issue with the structure of the Ellerth/Faragher defense that applies equally to cases of pervasive harassment- whether an employer that took proactive measures to prevent and remedy harassing behavior should be held liable nonetheless. In addressing this issue, I conclude that there are important policy considerations that merit several courts' adoption of a modified version of the Ellerth/Faragher defense. To better appreciate these objectives, however, I will begin in Part II by outlining the legislative and judicial background of Title VII and the Ellerth/Faragher defense. In Part III, I will profile the resulting circuit split, and in Part TV, I will articulate the various policies that support the Fifth and Eighth Circuits' adoption of a modified version of the defense. Ultimately, recognizing that a dual standard for pervasive and single, severe harassment cases presents more questions than answers, I will use Part V to lay out the basic provisions of a legal alternative that avoids the complications of a dual standard of liability for pervasive and single, severe sexual harassment cases. For purposes of this Note, I will focus on cases that directly address single instance harassment in some capacity, while recognizing that pervasive harassment cases share the same fundamental issues and concerns.
Recommended Citation
Robert R. Graham III,
Note, Two Wrongs Do Not Make a Right: The Need to Revisit the Ellerth/Faragher Affirmative Defense,
30
Notre Dame J.L. Ethics & Pub. Pol'y
423
(2016).
Available at:
https://scholarship.law.nd.edu/ndjlepp/vol30/iss2/8