By Angela M. Bradstreet and Gowon Song
In 1998, two U.S. Supreme Court cases, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, held that employers are vicariously liable for supervisory employees’ sexual harassment of subordinates. This vicarious liability, however, was not "automatic" in every case. The Supreme Court held that where the plaintiff employee had not suffered a tangible job action, the employer should be allowed to plead an affirmative defense to avoid liability by showing that "(a) [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) [] the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."
