Faragher, Ellerth, and the Federal Law of Vicarious Liability for Sexual Harassment by Supervisors: Something Lost, Something Gained, and Something to Guard Against

In this Essay, the author faces his nightmare exam question: he must define "sexual harassment" to the satisfaction of several potential graders with different perspectives on sexual harassment law. His valiant effort to justify his response leads him to a discussion of the federal law of vicarious liability for sexual harassment by supervisors after the Supreme Court's recent rejection of tort law respondeat superior analysis for such claims under Title VII. The author argues that, while the rejection of the tort standard for vicarious liability in Title VII claims removes the longstanding connection between Title VII law and state tort law, the result is appropriate given their different objectives. He further warns that, now that the ties between state tort law and Title VII have been severed, courts should not allow developments in sexual harassment cases to unduly influence state respondeat superior law.