Bench & Bar of Minnesota
Author: Norman Baer (co-authored with Gena Braaten)
Much has been written about Burlington Industries v. Ellerth and Faragherv. City of Boca Raton. The real impact may be unresolved issues and more questions when litigating sexual harassment disputes.
Since June 26, 1998, when the Supreme Court announced new standards for determining an employer’s liability for sexual harassment in Burlington Industries v. Ellerth and Faragherv. City of Boca Raton, much has been written about the decisions and their effect on a decidedly unsettled area of law. Some heralded the decisions as a victory for plaintiffs; others read them as providing protection for employers willing to take preventive measures.
The varied responses illustrate that, even after Burlington and Faragher, many issues regarding sexual harassment remain unsettled. There is, however, some consensus, including Justice Thomas’s and Justice Scalia’s dissents in Burlington, that the Supreme Court’s decisions may increase litigation as the lower courts struggle to apply the new analysis. With the passage of even a few months’ time, the decisions can now fairly be seen as providing direction in some areas while leaving other issues unresolved, and arguably creating new questions.