Employer Liability for Harassment Under Title VII: A Functional Rationale for Faragher and Ellerth

In two decisions concerning sexual harassment, Faragher v. City of Boca Raton' and Burlington Industries, Inc. v. Ellerth, The Supreme Court, on the last day of its 1997-1998 term finally articulated coherent vicarious liability rules critical for bounding the scope of the discrimination prohibitions in Title VII of the Civil Rights Act of 1964. The Court did so by explaining the meaning of the inclusion of "any agent" in Title VII's definition of "employer.'" The meaning of "agent" in this definition is critical for establishing employer liability because almost all Title VII-protected employees work for corporations and other legal fictions which can act, and thus discriminate, only through human agents The scope of Title VII, moreover, in part turns derivatively on the definition of "agent" because the Act's proscriptions do not render discriminating employees individually liable. Perhaps appreciating that a restrictive interpretation