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

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.