The Pros And Cons Of Enforcement Harassment

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1. A. “The Supreme Court, in Faragher and Ellerth, reasoned that vicarious liability for supervisor harassment is appropriate because supervisors are aided in such misconduct by the authority that the employers delegated to them.20 Therefore, that authority must be of a sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment” (“Enforcement Guidance,” para. 10).
B. “In some circumstances, an employer may be subject to vicarious liability for harassment by a supervisor who does not have actual authority over the employee. Such a result is appropriate if the employee reasonably believed that the harasser had such power” (“Enforcement Guidance,” para. 18).
C. “If an employer cannot prove that it discharged its duty of reasonable care and that the employee unreasonably failed to avoid the harm, the employer will be liable. For example, if unlawful harassment by a supervisor occurred and the employer failed to exercise reasonable care to prevent it, the employer will be liable even if the employee unreasonably failed to complain to management or even if the employer took prompt and appropriate corrective action when it gained notice” (“Enforcement Guidance,” para. 33).
2. The cases of Faragher v. City of Boca Raton and Burlington Industries v. Ellerth are in many ways similar to the case of Ms. Hall and Ms. Ament because it ruled on whether employers would be held responsible for supervisor’s harassment of their subordinates. This

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