“This Comment discusses the test that should be used by courts to determine whether a volunteer is an “employee” under Title VII. Part I provides background information by summarizing Title VII and related Supreme Court cases. Part II describes the circuit split and the reasoning used by the majority and minority circuits. Part III proposes that the circuit split be resolved in favor of the minority circuits’ common law agency test, rather than the majority circuits’ threshold-remuneration test. This Comment argues that the majority circuits’ threshold- remuneration test is inappropriate because it conflicts with the Restatement of Agency, which the Supreme Court has used to shape its analysis in relevant cases involving Title VII and other areas of employment law. Part IV concludes that the minority circuits’ common law agency test and the corresponding Restatement of Agency mean that volunteers do not need to be closed off from Title VII protection by a remuneration requirement.”
“In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), the Supreme Court unanimously held that the Religion Clauses of the First Amendment create a “ministerial exception” to certain employment laws. The ministerial exception bars claims by clergy of wrongful dismissal by religious institutions. In the years before Hosanna-Tabor, however, courts had ruled in four prominent decisions – two state, and two federal – that suits by clergy for sexual harassment based on a pervasively hostile environment could go forward, notwithstanding the ministerial exception. The rise of the #MeToo movement invites new and more detailed consideration of the tension between the policies behind sexual harassment law and the constitutional values protected by the ministerial exception.”
At issue in this case are the two elements of the Faragher-Ellerth affirmative defense that Susquehanna County raised. The District Court granted summary judgment in favor of the County, holding that the elements of this defense had been proven as a matter of law. The Third Circuit of the United States Court of Appeals vacated the judgment of the District Court, holding that the elements of the Faragher-Ellerth affirmative defense should be decided by a jury.
The First Circuit of the United States Court of Appeals discusses the affirmative defense available to employers when the harassment is by the plaintiff’s supervisor.
John H. Marks, Smoke, Mirrors, and the Disappearance of “Vicarious” Liability: The Emergence of a Dubious Summary-Judgment Safe Harbor for Employers Whose Supervisory Personnel Commit Hostile Environment Workplace Harassment
This article discusses two different lines of court cases post-Ellerth and how they helped manufacture a summary judgment safe harbor for employers. John H. Marks challenges the logic and the policy implications of this safe-harbor stretgy and argues that post-Ellerth lower courts have been far too deferential to the strategy at the summary judgment stage of litigation.
“In June, 1998, the Supreme Court issued two decisions, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton that established new standards for employer liability for sexual harassment. Although the two cases presented different questions and factual predicates, the Court adopted a unified holding with respect to employer liability for supervisor harassment.
Many commentators interpreted the new standards as a blow to employers based on the perception that employers would now be held accountable for workplace harassment without regard to their culpability.The thesis of this article is that the conventional wisdom with respect to Faragher and Ellerth is dead wrong. Those decisions, far from imposing additional liability on innocent employers, have instead created a virtual safe harbor that protects employers from liability unless their own conduct is found wanting. This protection for employers comes at a high price, depriving some victims of actionable sexual harassment of legal redress.”
“In two recent Supreme Court cases, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, the Court clarified the standard by which employers are held liable for sexual harassment committed by their employees. In this Note, Justin Smith analyzes these decisions and concludes that the Court moved the law in the right direction by resolving conflicting and convoluted agency doctrines applied by the lower courts, by imposing strict liability on employers for all sexual harassment by supervisors, and by allowing a contributory negligence defense for employers in some circumstances. However, he argues that the new liability regime, in which liability standards vary depending both upon the type of harassment and upon the relative positions of harasser and victim in the employment hierarchy, is less than ideal Applying an economic understanding of causation, the author finds no sound basis for varying liability standards. Instead, he proposes a uniform regime of strict vicarious liability on employers for all sexual harassment by their employees, coupled with an extension of the contributory negligence defense to all sexual harassment cases.”
“This Article takes issue with both the Court’s importation of tort and agency principles and its reluctance to hold employers vicariously liable for discriminatory acts of employees. With respect to the Court’s decision to borrow agency principles, I argue in Part II that such a move was not required by the statutory language of Title VII and should not be understood as furthering congressional intent.5 Part III then turns to the case law and tracks the Supreme Court’s importation of agency principles and the gradual erosion of vicarious liability in key decisions governing employer liability in the sexual harassment context.6 Beyond the questionable move to rely on private law to determine the scope of Title VII liability, I show how the Court’s uptake of tort and agency principles has been selective and misguided, leading the Court to reach results that were neither inevitable nor desirable as a matter of policy.”
“This Article examines and criticizes the courts’ failure to uniformly impose vicarious liability on employers in cases involving sexual harassment by supervisors, and considers the confusing rules applied by the federal courts and the EEOC when determining employer liability for sexual harassment. It then compares federal law to the state law of California, which imposes absolute vicarious liability on employers for all on-the-job sexual harassment by supervisors (the “California Rule”). This Article concludes that the federal courts should adopt the California Rule as the proper application of Title VII. Should the courts fail to do so, Congress should amend Title VII to require the California Rule.”