The Sexual Harassment Loophole

76 Pages Posted: 5 May 2021

Date Written: 2021

Abstract

Employers rarely pay for sexual harassment. The #MeToo movement has not changed this legal reality. Title VII of the Civil Rights Act of 1964—the nation’s primary workplace antidiscrimination law—contains a harassment loophole. Harassment is the only kind of Title VII violation that allows employers to avoid liability if they offer training and reporting opportunities to workers. In contrast, employers must automatically pay for all other Title VII claims such as discriminatory firings, even when firms have trained their employees not to discriminate. This Article makes the case for closing the loophole by aligning harassment liability with other Title VII offenses and holding employers automatically responsible for all proven incidents of workplace harassment.

When the Supreme Court created the harassment loophole years ago, it assumed that employers would enact workplace measures to effectively deter harassment. Unfortunately, the #MeToo movement has convincingly demonstrated that the problem of workplace harassment remains widespread despite decades of harassment training. Even though firms express a rhetorical commitment to antiharassment values, many employers engage only in cosmetic compliance and fail to take meaningful steps to actually curb harassment. Closing the harassment loophole would not only represent a tangible legal solution to the ongoing problem of harassment, it would also advance the goals of compensation, deterrence, and cost spreading that lie at the core of Title VII. Just as companies must pay for all other Title VII violations— regardless of formal policies that prohibit misconduct—courts should hold firms strictly accountable for sexual harassment.

Keywords: #MeToo, harassment, sex discrimination, vicarious liability, supervisory harassment

JEL Classification: K13, K31

Suggested Citation

Cunningham-Parmeter, Keith, The Sexual Harassment Loophole (2021). Washington and Lee Law Review, Vol. 78, p. 155, 2021, Available at SSRN: https://ssrn.com/abstract=3837694

Keith Cunningham-Parmeter (Contact Author)

Willamette University - College of Law ( email )

245 Winter St. SE
Salem, OR 97301
United States
(503) 370-6609 (Phone)

HOME PAGE: http://www.willamette.edu/wucl/faculty/profiles/cunningham/index.php

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