It is somewhat radical to suggest that an employer should not be held vicariously liable for an employee's voluntary submission to sexual advances where the alleged harasser is a supervisor, and this approach is a marked departure from existing assumptions regarding sexual harassment. Most decisions and writings on the topic have imposed--under a traditional agency theory-- vicarious liability upon the employer for the sexually harassing conduct of its supervisors.4 Specifically, courts addressing this issue have held that “[t]here is no question that a ‘tangible employment action’ occurs when a supervisor abuses his authority to act on his employer's behalf by threatening to fire a subordinate if she refuses to participate in sexual acts with him, and then actually fires her when she continues to resist his demands.” This Article goes against the grain of both the cases analyzed and the scholarly articles written to date, though the author nevertheless attempts balance by proposing that a supervisor be jointly and/or severally liable with his employer for the discriminatory or harassing conduct of the supervisor if the supervisor is found to have engaged in sexual harassment. This proposal is fully consistent with the Supreme Court's decisions defining the scope of tangible employment actions. Part II describes the historical background of sexual harassment claims against the backdrop of the Supreme Court's decisions in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. Part III presents the Second and Ninth Circuits' analyses determining that voluntary submission to a supervisor's sexual advances constitutes a tangible employment action, thereby precluding use of the Faragher/Ellerth affirmative defense. Part IV analyzes the decisions of the Second and Ninth Circuits and argues that voluntary submission does not constitute a “tangible employment action.” However, even if the courts determine that voluntary submission does constitute a “tangible employment action,” this Article argues that the appropriate standard in determining employer liability is a negligence standard. As such, the employer should be entitled to assert the Faragher/Ellerth affirmative defense in cases involving voluntary submission to a supervisor's sexual advances. Ohio courts apply a negligence standard, and this Part argues that the Supreme Court should follow suit. Part V concludes the article, noting that the imposition of a liability standard is consistent with Supreme Court precedent.
Carrie E. Fischesser, Employer Vicarious Liability for Voluntary Relationships Between Supervisors and Employees, 29 SEATTLE U. L. REV. 637 (2006).