Twenty Years Later, Should #MeToo Spell #TimesUp for the Faragher-Ellerth Framework?

#MeToo #TimesUp #GenderEquality #GenderJustice #SexualHarassment

?All Rights Reserved by Parisis G. Filippatos

{This article appears on page 56 of the Spring 2018 issue of The Employee Advocate, published by the National Employment Lawyers Association (NELA).}

Introduction

In her excellent article, “Success for #MeToo Means Reopening Courthouse Doors,”[1] Terry O’Neill, the Executive Director of the National Employment Lawyer’s Association (“NELA”) and former President of the National Organization for Women (“NOW”), points to the alarming increase of employment discrimination claims being disposed of by so-called “cram-down” arbitration as a significant impetus for the #MeToo (aka #TimesUp) movement. According to O’Neill, the #MeToo movement should challenge corporate America’s increasing resort to mandatory arbitration – which, she posits, is confidential and favors employer interests over employee rights.[2]

Yet perhaps corporate America’s effort to simply manage the legal risks of workplace sexual harassment, rather than truly remedy the problem, runs deeper still. Regardless of the forum chosen for adjudication, the federal law that has evolved over the last half century, from both statute and judicial opinion, imposes only very limited liability on employers for sexual harassment that transpires in the workplace, thereby leaving employees woefully unprotected even when they are able to pry open the courthouse doors instead of arbitrating. Under the twin landmark cases of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), an employer can be held liable for any sexual harassment that occurs among employees if and only if (a) the sexual harassment has resulted in a tangible detrimental action against an employee; or, (b) in the absence of such specific action, the employer has not implemented a meaningful remedial regime to address incidents of sexual harassment. Thus, for the past twenty years under the Faragher-Ellerth framework, women in the workplace have been forced to address their complaints of sexual harassment to human resources departments that conduct internal investigations geared towards quiet resolution rather than competent justice.[3] Perhaps with the momentum of the #MeToo movement, the time has finally come to outlaw sexual harassment in the workplace by imposing strict liability on employers for all such conduct.[4]

#MeToo: From Moment to Movement

The kindling for the #MeToo movement was gathered on January 21, 2017, in the form of the Women’s March -- the largest single-day protest in U.S. history[5] -- which took place in the wake of the election of Donald J. Trump, an alleged serial sexual harasser of women,[6] as President of the United States. The #MeToo movement’s identity, however, was not sparked until later that year when virtually daily revelations of sexual harassment or assault incidents involving various high-profile celebrities began to appear in the media, spurred on by the realization that Harvey Weinstein, an uber-powerful Hollywood mogul, had engaged in chronic sexually predatory behavior for decades and gotten away with it.[7] Thus, the rise of the #MeToo movement reaffirmed a troubling social phenomenon: sexual harassment continues to be condoned as a staple form of discourse in the American workplace notwithstanding over fifty years of steady legislative and judicial intervention to remedy its scourge.

In fact, 2018 has already evidenced cultural shifts reflecting the searing impact of the #MeToo movement on the American consciousness, which, in turn, has created a fertile environment for new legislation. For example, Section 13307 of the Tax Cuts and Jobs Act of 2017, 26 U.S.C. 162(q), provides a tax disincentive against the use of non-disclosure agreements (“NDAs” aka “hush agreements”) in the settlement of sexual harassment claims: “No deduction shall be allowed under this chapter for (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.” While the utility of this particular reform remains open to debate, it is clear that today’s urgent context presents the perfect opportunity to revisit the fundamental legal framework set forth in Faragher-Ellerth, which purports to redress sexual harassment in the workplace.

Faragher-Ellerth In Context

The epidemic of sexual harassment and assault has failed to abate outside, as well as within, the American workplace since the promulgation of the Faragher-Ellerth framework.[8] According to a recent Gallup poll,[9] 69% of people asked in the United States say sexual harassment is a major problem, up from 50% in 1998, the year when Faragher and Ellerth were decided by the Supreme Court. Indeed, in 1998, the EEOC received 9,076 sexual harassment charges,[10] whereas by 2017, that number had risen to 12,428.[11] Thus, whether one refers to public opinion or enforcement statistics, even after accounting for the approximately 15% growth in general population in the intervening 20 years,[12] it is clear that the public policy objective of diminishing sexual harassment and assault in the workplace has been a dismal failure.

In 1964, Title VII of the Civil Rights Act made it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U. S. C. § 2000e-2(a)(1). In 1980, the Equal Employment Opportunity Commission (“EEOC”) promulgated guidelines specifying "sexual harassment," as a form of sex discrimination prohibited by Title VII. 29 CFR § 1604.11. Subsequently, as was noted by the Supreme Court in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986), since the issuance of the EEOC guidance, “courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.”

Yet the road from Title VII, to the EEOC’s anti-harassment guidance, to the Supreme Court’s opinion in Meritor and its progeny -- which, ultimately, included Faragher-Ellerth -- has been circuitous, ill-signed and not well-lit. Although discrimination on the basis of sex became unlawful in 1964, with the passage of Title VII, it was a score plus one year from then before sexual harassment was codified as unlawful by the EEOC, and another dozen plus one year, thereafter, before the Faragher-Ellerth framework (flawed as it has proven to be) emerged. During that course, all too often the Supreme Court seemed more concerned about giving employers the benefit of the doubt, or demurring from social prescriptions, than effectuating the clear intent of Title VII to prohibit, inter alia, discrimination based on sex in the workplace.

The Court’s respective opinions in Faragher and Ellerth can best be understood as attempts to untangle a thicket of the Court’s own making – i.e., the conflicting agency principles that sprouted from its efforts over the preceding thirty-plus years to define the contours of an employer’s vicarious liability for the sexual harassment suffered by one employee at the hands of another. Prior to Faragher-Ellerth, in the context of Title VII, an employer could only be held responsible for the acts of its personnel under the doctrine of respondeat superior, which was based on the ancient common law of master-servant. A "master is subject to liability for the torts of his servants committed while acting in the scope of their employment," Restatement (Second) of Agency § 219(1) (1958) (hereinafter “Restatement”), with the "scope of employment" defined as including conduct (a) "of the kind [a servant] is employed to perform," (b) occurring "substantially within the authorized time and space limits," and (c) "actuated, at least in part, by a purpose to serve the master," but (d) excluding an intentional use of force "unexpectable by the master." Id. at § 228(1).

From Meritor to Harris to Oncale

In Meritor, writing for a unanimous Court, Chief Justice William J. Rehnquist declined “the parties' invitation to issue a definitive rule on employer liability, but … agree[d] with the EEOC that Congress wanted courts to look to agency principles for guidance in this area.” 477 U.S. at 72. Thus, relying on Restatement §§ 219-237, the Court in Meritor held that any per se rule -- whether it (a) automatically imposed liability on an employer for the sexual harassment perpetrated by a supervisory employee upon a subordinate; or, conversely, (b) absolved the employer from liability for such conduct based on lack of notice to that employerthat any sexual harassment had occurred -- was inconsistent with the legislative language and intent of Title VII. 477 U.S. at 72. However, as Justice Thurgood Marshall pointed out in his concurring opinion in Meritor, 477 U.S. at 74-78, the Court’s conservative approach left open the question as to whether -- based on the agency principles articulated, which dictated that an employer only be held liable for conduct of an employee that falls within the scope of employment -- quid pro quo sexual harassment (consisting of a supervisor taking tangible employment action against a subordinate based on sexual animus) continued to impose vicarious liability on the employer, whereas hostile work environment sexual harassment (involving an employee being subjected to sexual animus in the workplace by any colleague, whether supervisor, peer or subordinate) did not.

Seven years later, in Harris.v Forklift Systems, Inc., 510 U.S. 17 (1993), Justice Sandra Day O’Connor, again writing for a unanimous Court, tried to clarify conclusively what type of sexual harassment gave rise to vicarious employer liability: “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation. [***]But Title VII comes into play before the harassing conduct leads to a nervous breakdown.  A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.  Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality.” Id. at 21-22. Thus, the Court in Harris held: “So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive … there is no need for it also to be psychologically injurious.” Id. at 22 (citing Meritor, 477 U.S. at 67).

Five years later still, and just months before Faragher and Ellerth were simultaneously decided in the summer of 1998, the Court reaffirmed its opinion that sexual harassment -- if, in fact, severe and pervasive enough to affect the terms and conditions of employment for a reasonable employee -- was cognizable under Title VII. Even more remarkably, writing for a unanimous Court in Oncale v. Sundower Offshore Services, Inc., 523 U.S. 75, 81-82 (1998), Justice Antonin G. Scalia extended this protection to same-sex victims of sexual harassment: “As we emphasized in Meritor and Harris … [Title VII] does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment.” Thus, the Court in Oncale held that “nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.”  523 U.S. at 79.

Thus, the Supreme Court had reached a true crossroads twenty years ago, when the time came to decide Faragher and Ellerth. On the one hand, it had consistently recognized that sexual harassment in all its forms -- quid pro quo or hostile work environment, supervisor or peer, same or opposite gender -- could potentially give rise to a sex discrimination claim under Title VII. On the other hand, it had tempered employer liability with several vague qualifications or standards regarding the conduct at issue – e.g., was it “severe and pervasive,” did it occur “within the scope of employment,” and was its affect on “the terms and conditions of employment”? Thus, on the eve of Faragher-Ellerth, the ultimate question remained: did sexual harassment in the workplace impose de facto vicarious (i.e., strict) liability on employers notwithstanding the prior protestation of Meritor, 477 U.S. at 72, to the contrary not to “automatically” find employers liable for workplace sexual harassment suffered by employees?

The Faragher-Ellerth Framework

With its twin decisions of Faragher and Ellerth, the Supreme Court seemed to answer a resounding no. Instead, the Court sought to resolve the conflict between competing (and somewhat convoluted) agency principles, and the primary objective of Title VII to avoid harm to employees, by tempering the evolving acknowledgement of employer vicarious liability for sexual harassment occurring in the workplace with the recognition of a new conditional affirmative defense that would benefit employers.

Thus, writing the majority (7-2) opinion for the Court in Faragher, Justice David H. Souter reasoned: “The proper analysis here, then, calls not for a mechanical application of indefinite and malleable factors set forth in the Restatement, but rather an enquiry into the reasons that would support a conclusion that harassing behavior ought to be held within the scope of a supervisor's employment, and the reasons for the opposite view.  The Restatement itself points to such an approach, as in the commentary that the ‘ultimate question’ in determining the scope of employment is 'whether or not it is just that the loss resulting from the servant's acts should be considered as one of the normal risks to be borne by the business in which the servant is employed.’” 524 U.S. at 797 (quoting Restatement § 229, Comment a; other internal citations omitted).

Justice Souter continued: “In sum, there are good reasons for vicarious liability for misuse of supervisory authority. That rationale must, however, satisfy one more condition. We are not entitled to recognize this theory under Title VII unless we can square it with Meritor’s holding that an employer is not ‘automatically’ liable for harassment by a supervisor who creates the requisite degree of discrimination, and there is obviously some tension between that holding and the position that a supervisor's misconduct aided by supervisory authority subjects the employer to liability vicariously; if the ‘aid’ may be the unspoken suggestion of retaliation by misuse of supervisory authority, the risk of automatic liability is high.” 524 U.S. at 804 (footnote omitted). Nevertheless, Justice Souter observed, “[a]lthough Title VII seeks ‘to make persons whole for injuries suffered on account of unlawful employment discrimination,’ its ‘primary objective,’ like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm.” 524 U.S. at 805-06 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975)).

Justice Souter concluded: “In order to accommodate the principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in … [Ellerth], also decided today.  An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” 524 U.S. at 807-08 (other internal citations omitted).

Additionally, writing the majority (7-2) opinion for the Court in Ellerth, Justice Anthony M. Kennedy observed: “We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII.  For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive.  Because Ellerth's claim involves only unfulfilled threats, it should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct.” 524 U.S. at 753-54 (citing Oncale, 523 U.S. at 81 and Harris, 510 U.S. at 21). Justice Kennedy continued: “We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat. We turn to principles of agency law, for the term ‘employer’ is defined under Title VII to include ‘agents.’ In express terms, Congress has directed federal courts to interpret Title VII based on agency principles.  Given such an explicit instruction, we conclude a uniform and predictable standard must be established as a matter of federal law.” 524 U.S. at 754 (citing Meritor, 477 U.S. at 72 and 42 U. S. C. § 2000e(b)).

In conclusion, Justice Kennedy stated: “[A] tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.  Whatever the exact contours of the aided in the agency relation standard, its requirements will always be met when a supervisor takes a tangible employment action against a subordinate.  In that instance, it would be implausible to interpret agency principles to allow an employer to escape liability, as Meritor itself appeared to acknowledge. [***]Whether the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action is less obvious.  Application of the standard is made difficult by its malleable terminology, which can be read to either expand or limit liability in the context of supervisor harassment.  On the one hand, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation. On the other hand, there are acts of harassment a supervisor might commit which might be the same acts a coemployee would commit, and there may be some circumstances where the supervisor's status makes little difference.” 524 U.S. at 762-63 (internal citations omitted).

The Faragher-Ellerth Affirmative Defense: Theory Meets Practice

The Faragher-Ellerth construct was envisioned by the Court as both an employer’s shield and an employee’s sword – i.e., employers are entitled to an affirmative defense against vicarious liability for sexual harassment in the workplace if they timely and meaningfully address such complaints by employees as they arise. See Faragher, 524 U.S. at 807-08. Faragher-Ellerth aimed to incentivize employers to implement effective preventative measures against sexual harassment in the workplace that would discourage employees from engaging in conduct creating a hostile work environment while concomitantly encouraging employees to report any such violative conduct. See Ellerth, 524 U.S. at 764 (“Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms … [so that] [w]ere employer liability to depend in part on an employer's effort to create such procedures, it would affect Congress' intention to promote conciliation rather than litigation in the Title VII context and the EEOC's policy of encouraging the development of grievance procedures”) (internal citations omitted).

As the theory went, employers would be rewarded for implementing anti-harassment policies and procedures that protected employees, and the prevalence of sexual harassment or assault in the workplace would diminish. Yet, as the #MeToo movement has proven, that theory never became reality. Nor would it be the only time the Supreme Court has failed to recognize that the epidemic of violence against women in American society required broad judicial redress. See U.S. v. Morrison, 529 U.S. 598 (2000) (Court upheld dismissal of civil suit brought by female campus rape victim and struck down as unconstitutional provision of the Violence Against Women Act of 1994 (“VAWA”), 42 U.S.C. § 13981, which afforded federal civil remedies to victims of gender-motivated violence, because Congress lacked authority to enact such legislation under either Commerce Clause or Fourteenth Amendment).

The Post-Faragher-Ellerth Pendulum: From Suders to Vance

By 2004, however, perhaps as a harbinger of the serious societal issues raised by the #MeToo movement with respect to the Faragher-Ellerth framework, the Supreme Court seemed ready to limit the availability of the employer affirmative defense when the employee claimed constructive discharge based on sexual harassment. In Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), the employee claimed the tangible adverse employment action to be sexual harassment so severe that it drove her to quit her job before she could officially complain about the offensive conduct. Writing a majority (8-1) opinion for the Court, Justice Ruth Bader Ginsburg, held that the employee’s claim was viable because: (a) sexual harassment can cause a hostile work environment that rises to the level of a constructive discharge; (b) a constructive discharge is a tangible adverse employment action that is cognizable under Title VII; and (c) under Faragher-Ellerth, if the hostile work environment results in a tangible adverse employment action, then no affirmative defense is available to an employer seeking to avoid vicarious liability, but if the hostile work environment does not constitute a tangible adverse employment action, then an affirmative defense is available to the employer under certain conditions. 542 U.S. at 143. The Court explained: “Like the harassment considered in … [Faragher and Ellerth], harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts. Unlike an actual termination, which is always effected through an official act of the company, a constructive discharge need not be. A constructive discharge involves both an employee’s decision to leave and precipitating conduct: The former involves no official action; the latter, like a harassment claim without any constructive discharge assertion, may or may not involve official action.  [***] To be sure, a constructive discharge is functionally the same as an actual termination in damages-enhancing respects. But when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold, calls for extension of the affirmative defense to the employer.” Id. at 148 (emphasis in original; internal citations omitted).

Finally, in 2013, the pendulum swung back in favor of the employer affirmative defense when the Supreme Court decided Vance v. Ball State University, 570 U.S. 421 (2013). In a narrow majority (5-4) opinion for the Court, Justice Samuel A. Alito, Jr., answered a question that Faragher-Ellerth had left open – i.e., who qualifies as a “supervisor” for purposes of imposing vicarious liability on the employer? Upholding the Seventh Circuit’s restrictive definition of a “supervisor” as one who is “empowered by the employer to take tangible employment actions against the victim,” the Court rejected the more expansive definition of “supervisor” -- which was favored by the EEOC and the dissent of Justice Ginsburg -- as anyone who is authorized to (a) undertake or recommend tangible employment action regarding the complaining employee or (b) direct that employee’s daily work activities. Id. at 424. In her strongly-worded dissent, Justice Ginsberg excoriated the Court for its equivocation, initially noting that “as Faragher and Ellerth recognized, harassment by supervisors is more likely to cause palpable harm and to persist unabated than similar conduct by fellow employees,” id. at 454, Justice Ginsberg went on to conclude: “Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC's Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ. Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions. In so restricting the definition of supervisor, the Court once again shuts from sight the robust protection against workplace discrimination Congress intended Title VII to secure.” Id. at 463-64 (internal quotations and citations omitted).

The Faragher-Ellerth Framework Today

Current events have pointedly demonstrated that the aspirations of the Faragher-Ellerth regime have proved to be ephemeral and the time to renounce Meritor’s demur against employer strict liability for workplace sexual harassment is long overdue. Nor is the imposition of strict liability in this context contrary to the balance of the opinion in Meritor or, more importantly, its progeny. First, from Meritor to Faragher-Ellerth, the Court has consistently acknowledged that employer strict liability is appropriate under Title VII with respect to quid pro quo sexual harassment. See Meritor, 477 U.S. at 70-71 (when employee suffers tangible employment action in retaliation for refusal to agree to supervisor's sexual demands, employer will be held strictly liable); Ellerth, 524 U.S. at 762-63 (same). Second, in its most recent substantive pronouncement on Faragher-Ellerth, the Supreme Court reaffirmed “that Title VII prohibits the creation of a hostile work environment,” Vance, 570 U.S. at 427 (citing Meritor, 477 U.S. at 64-67), and that “an employer is directly liable for an employee's unlawful harassment if the employer was negligent with respect to the offensive behavior.” Vance, 570 U.S. at 427 (citing, inter alia, Faragher, 524 U.S. at 789).  

As posited by Catharine MacKinnon in her 1979 groundbreaking book, The Sexual Harassment of Working Women: A Case of Sex Discrimination, workplace sexual harassment can be combated legally only by recognizing it for what it is: the most destructive type of unlawful employment discrimination. Discrimination, of course, can only exist if the discriminator has power over the discriminated. Thus, sexual harassment is most cogently understood in terms of the power imbalance, not the sexual intent, between those involved. It is that power imbalance, channeled as sexual animus, which has allowed sex, or gender stereotypes as proxies for sex, to impede the advancement of women in the workplace.

A Polemic Conclusion

Having accepted this argument, it is a small logical leap to the position that all sexually hostile work environments are based on a power imbalance that tacitly enforces a pernicious quid pro quo favoring men over women. The current facts on the ground dictate that the price of entry for women in general business society is objectification. Unfortunately, that ante is upped to oppressive sexualization (aka hostile work environment harassment) in certain industries, and outright quid pro quo harassment in others. But the gender disparity is always there, as can easily be proven by the well-documented and persistent wage differential between men and women.[13]

Perhaps it will take legislative reform to translate the #MeToo movement into a concrete reality that overcomes the regime of complacency created by the Faragher-Ellerth framework. After all, it took the Lilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 2000e-5(e), to overturn Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which had eviscerated the Equal Pay Act of 1963, 29 U.S.C. § 206, by holding that the statute of limitations applicable to an equal-pay claim begins on the date that the employer makes the initial discriminatory wage decision, not at the date of the most recent paycheck.

But at least a colorable argument can (and should) be pressed by employee rights advocates that the overwhelming prevalence of workplace sexual harassment in American society has rendered the Faragher-Ellerth analysis obsolete. The Supreme Court in Meritor, 477 U.S. at 72, rejected the proposition that “employers are always automatically liable for sexual harassment by their supervisors” because the vicarious liability of employers for the conduct of their employees is based on common law agency principles, which by their very nature are self-limiting. But that same Court acknowledged that, in certain obvious instances, such as quid pro quo sexual harassment by a supervisor, strict employer liability was appropriate. See Meritor, 477 U.S. at 70-71.

Moreover, in Harris, 510 U.S. at 22, the Supreme Court extended the reach of employer strict liability for workplace sexual harassment to those cases where a reasonable employee, in fact, experiences a hostile work environment. Indeed, in Oncale, 523 U.S. at 81-82, the Supreme Court stretched employer strict liability even further to include workplace sexual harassment involving same-sex colleagues because Title VII was intended by Congress to remedy all instances of employment discrimination based on sex, not only those involving traditional heterosexual stereotypes. Similarly in Ellerth, 524 U.S. at 753-54, the Supreme Court did away with the oblique distinction between quid pro quo and hostile work environment sexual harassment in determining employer liability, preferring instead to focus on whether a tangible adverse employment action had occurred that warranted redress under Title VII. Finally, in Suders, 542 U.S. at 148, the Supreme Court found that the justification of a constructive discharge that objectively prevented the employee from availing him or herself of the employer’s internal complaint procedure could suffice to establish a tangible adverse employment action that would be actionable under Title VII.

Through this prism, the reach of the affirmative defense articulated in Faragher can be viewed as quite modest even before the stark reality of the #MeToo movement is superimposed. Under Faragher, 524 U.S. at 807-08, if, and only if, an employee fails to establish a tangible adverse employment action – either in his or her case-in-chief or in his or her rebuttal to the employer’s affirmative defense – can an employer avoid vicarious liability for the workplace sexual harassment complained of and, even then, only upon showing that: “(a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) []the … employee unreasonably failed to take advantage of [same] … .”

           Given apocalyptic workplace sexism that the #MeToo movement has brought to the fore, what type of sexual harassment can honestly be said to exist in corporate America that is not axiomatically based on a gender-entrenched power imbalance (i.e., tacit quid pro quo harassment) that allows men to sexualize women in the workplace almost at will, thereby depriving women of the equal employment opportunities that are guaranteed them by statute? And, if no other exists, then why should not all workplace sexual harassment automatically render the employer strictly liable because such conduct constitutes tangible adverse action in abrogation of the harassment-free workplace (i.e., the unhostile work environment) that all women (and men) are entitled to enjoy under Title VII but which the employer has failed to deliver under the framework of Faragher-Ellerth?

[1] Available at https://exchange.nela.org/blogs/terry-oneill/2018/03/12/metoo-movement-success-reopening-the-courthouse and originally published in Law360 Expert Analysis Opinion, February 20, 2018.

[2] Id. (“Unlike a court of law, arbitration is a private forum in which secrecy is the order of the day and the rules and processes are stacked against the employee. [***][W]ithout a meaningful process for enforcement of workplace legal protections – access to a public judicial forum where perpetrators and toxic workplaces can be exposed and held accountable – the imbalance of power that fuels harassment is unlikely to change”).

[3] See id. (“Workplace harassment persists, in part, because employees are often reluctant to report it. Some fear they won’t be believed, or that they will be blamed. Others are afraid that nothing will be done, or that they will suffer retaliation for speaking up. Many rightly perceive their company Human Resources departments are more interested in protecting the employer than disciplining transgressors”) (citing Marshall, Anna-Maria, Idle Rights: Employees’ Rights Consciousness and the Construction of Sexual Harassment Policies, 39 Law & Soc’y Rev. 1, 83 (2005)).

[4] See generally Murr, Heather S., The Continuing Expansive Pressure to Hold Employers Strictly Liable for Supervisory Sexual Extortion: An Alternative Approach Based on Reasonableness, 39 U.C. Davis L. Rev. 529 (2006).

[5] Broomfield, Matt, "Women's March Against Donald Trump Is the Largest Day of Protests in U.S. History, Say Political Scientists,” Independent, January 23, 2017.

[6] Ford, Matt, The 19 Women Who Accused President Trump of Sexual Misconduct,” The Atlantic, December 7, 2017.

[7] Strauss, Jackie, Emma Thompson: Harvey Weinstein Is Not a Sex Addict, “He’s a Predator,” Hollywood Reporter, October 13, 2017.

[8] Chira, Susan, Numbers Hint At Why #MeToo Took Off: The Sheet Number Who Can Say Me Too, New York Times, The Upshot, February 21, 2018.

[9] https://news.gallup.com/poll/221216/concerns-sexual-harassment-higher-1998.aspx.

[10] https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_eeoc_only_by_state.cfm.

[11] https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm; see also U.S. EEOC, Select Task Force on the Study of Harassment in the Workplace Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (2016) (“anywhere from 25% to 85% of women report having experience sexual harassment in the workplace”) (https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm).

[12] https://www.multpl.com/united-states-population/table.

[13] See https://www.dol.gov/wb/resources/Womens_Earnings_and_the_Wage_Gap_17.pdf.