Don't Train Your Employees and Cancel Your '1-800' Harassment Hotline : An Empirical Examination and Correction of the Flaws in the Affirmative Defense to Sexual Harassment Charges

The Supreme Court's two-pronged affirmative defense limiting employer liability for sexual harassment, articulated in the Faragher and Ellerth decisions, generated substantial scholarly commentary. Many scholars were quick to predict how lower courts would apply the affirmative defense. However, many predictions about the affirmative defense were advanced prior to the emergence of a sufficient number of judicial opinions applying it. In this article we report results of our empirical study of the first 72 post-Ellerth and Faragher opinions involving employers' summary judgment motions that include affirmative defenses in response to allegations of sexual harassment in the workplace. We find that employer-related factors heavily influence the courts' construction of both prongs of the affirmative defense. Somewhat surprising is the degree to which the courts look to employer conduct when characterizing employee conduct. In our discussion we consider the legal and policy implications generated by an incentive structure informed by the courts' application of the affirmative defense