Employer Liability for Employee Sexual Harassment: A Judicial Policy-Making Study



Since 1964 and 1972 when Congress passed key legislation concerning sex discrimination, the courts have been left to fashion policies on sexual harassment in employment. In 1998, the Supreme Court issued four major decisions in this area, one dealing with suits against school districts, one involving same-sex discrimination, and two pertaining to the application of common law to employer liability in sexual harassment cases. The ruling in the first case is at odds with the others, suggesting that Congress may need to intervene. The other three pose a series of complex issues that could benefit from congressional action and administrative guidance from the Equal Employment Opportunity Commission. The Court's rulings have answered some legal questions, but posed others that will produce extensive litigation in coming years.