Judicial holdings regarding sexual harassment actions have put judges who want to ensure what they view
as a just outcome in the awkward position of having to choose between following precedent or "breaking the
rules."
This article presents a theoretical assessment and empirical analysis of judicial rule-breaking with regard to
two
rules relating to sexual harassment. The first such rule, established in the Oncale decision, opened the door
to the
"equal-opportunity harasser" who treats everyone badly and thus escapes the prohibition on harassment
"due to
sex." The other rule, set forth in the Ellerth and Faragher decisions, establishes a two-prong requirement for
companies to demonstrate that they should not be held liable in the case of sexual harassment of an
employee. The
requirements for the so-called affirmative defense are, first, that the employer acted reasonably in relation to
a
complaint, and second that the employee acted unreasonably, usually indicated by a tardy complaint. Our
analysis
of 131 cases finds that the likelihood of rule-breaking increases when judges perceive that an employer that
is
otherwise meritorious (that is, responds effectively to the complaint) could be held liable (in the case of
Ellerth and
Faragher). On the other hand, courts have followed the rule when an unjust outcome has small
repercussions (as in
Oncale). Of interest in this context is how the courts will treat a new sexual harassment rule, as outlined in
the
Supreme Court's Vance decision.