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Volume 19 • Number 2

EDITORIAL POLICY AND INFORMATION FOR AUTHORS ..................................
THE EDITOR’S PAGE ..........................................................................
Robert J. Rabin
WHEN ARE EMPLOYERS LIABLE? ..........................................................
Nancy R. Mansfield and Joan T. A. Gabel
Alan R. Kabat
AND BEYOND ...................................................................................
Orrin Baird
Michael R. Brown
EMPLOYEE’S STATUTORY RIGHTS ..........................................................
Mary K. O’Melveny
Maurice Baskin and Herbert R. Northrup
2002–2003 TERM .............................................................................
Maria O’Brien Hylton
Section of
Labor and Employment Law
American Bar Association
Copyright 2003 American Bar Association

EDITORIAL STATEMENT: The Labor Lawyer is a journal of ideas and developments in
the field of labor and employment law. Its objectives are to provide practitioners, judges,
administrators, and the interested public with balanced discussions of developments in
all areas of labor and employment law. The Labor Lawyer is geared to the practical needs
of those who work in this area and seek to share their insights and viewpoints. The Editor
encourages discussion of the broader policy issues that underlie these developments. The
Labor Lawyer
may be cited as follows, by volume and page: 19 LAB. LAW.
EDITORIAL GUIDELINES FOR AUTHORS: The Labor Lawyer welcomes contributions
from all interested persons. Articles should be submitted to Professor Robert J. Rabin,
Editor, The Labor Lawyer, Syracuse University College of Law, E.I. White Hall,
Syracuse, NY 13244-1030; phone: 315/443-3681; fax: 315/443-4141.
In general, articles
should be informal and direct. Footnotes should be confined to useful documentation.
Only one double-spaced copy should be submitted. In preparing both text and footnotes,
authors should refer to the following works for style: The Bluebook: A Uniform System
of Citation
(17th ed.) (Harvard Law Review Association, Cambridge, Mass.), and for mat-
ters of literary style not covered by this manual, The Chicago Manual of Style (14th ed.)
(The University of Chicago Press, Chicago, Ill.), or The Elements of Style by William
Strunk, Jr., and E.B. White (3rd ed.). Absent appropriate disclosure in connection with
the article submission, The Labor Lawyer will rely on the author’s belief that the article’s
subject matter has not been preempted.
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DISCLAIMER: The material contained herein represents the opinions of the authors
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2003 American Bar Association. All rights reserved. Printed in the United States
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Copyright 2003 American Bar Association

The Labor Lawyer
A Journal of Ideas and Developments in
Labor and Employment Law
Professor Robert J. Rabin
Syracuse University College of Law
Syracuse, New York 13244-1030
William L. Keller, Chair
Laurence E. Baccini
Howard Lesnick
Michael H. Beck
David M. Silberman
Allan L. Bioff
Evan J. Spelfogel
Robert M. Dohrmann
Marley S. Weiss
Syracuse University College of Law
Jeff Philp
Mary C. King
Scott E. Wells
Michael Fogel
Julie Jordan
Adam J. Katz
Erin Zipfel
Paul M. Bishop
Amanda K. Bruchs
Suzanne J. Halloran
Cathy Hanley
Sharon A. Lai
Michelle T. Perrin
Kristen E. Smith
Copyright 2003 American Bar Association

The Editor’s Page
This issue of The Labor Lawyer features the annual report of the
Secretary of the Section, reviewing the U.S. Supreme Court’s labor and
employment law docket for the previous term. This year’s paper is by
Professor Maria O’Brien Hylton, who teaches at Boston University Law
School. I had the pleasure of listening to Professor Hylton present her
report at the Section’s annual meeting in San Francisco this summer.
While the paper covers two dozen or so labor and employment cases,
Professor Hylton concentrated in her talk on just two of them: Lawrence
v. Texas
, which involves the privacy rights of consenting homosexuals,
and Grutter v. Bollinger, which deals with the affirmative action pro-
gram of the Michigan Law School. Neither case has a direct impact
upon the employment arena. However, as Professor Hylton explains in
the introduction to her paper, each case sets an important tone that
should have implications for the workplace.
Professor Hylton’s discussion of Grutter was of special interest to
me. I’ve mentioned in past Editor’s Pages that I look forward to the
Secretary’s report each year because I had the opportunity to fill that
role many years ago, and I know what a challenge it is. The lead case
in my year was United Steelworkers v. Weber, the case that upheld a
workplace affirmative action program against a challenge under Title
VII. That was in 1979, and I wondered whether Grutter, an education
case, has any implications twenty-five years later for the continued
vitality of Weber and other affirmative action cases in the employment
As we know, Grutter upheld Michigan Law School’s affirmative ac-
tion program, which took minority status into account in making ad-
missions decisions. The Court held that racial diversity in law school
was a legitimate objective of the state, and that the program had been
narrowly drawn to accomplish that end. The heart of the case was the
conclusion that it was important for the student body to be diverse
in order to reflect the society into which students would enter upon
In assessing the validity of affirmative action programs in the em-
ployment setting, the Court has not looked at the value of diversity as
such. Rather, it has examined affirmative action programs as remedial
steps to correct discrimination either in the particular workplace itself
or in a larger employment market. The two cases that test affirmative
action under Title VII—Weber and the later Johnson case—both allow
an employer to take steps to correct the impact upon a particular
workplace of a traditionally segregated occupation. For example, when
Copyright 2003 American Bar Association

Kaiser and the Steelworkers Union found that it was difficult for Kaiser
to hire experienced, skilled minority craft workers because of tradi-
tional patterns of discrimination against African Americans in that
part of the country, they were permitted to set up a crafts training
program in which one out of every two positions was reserved for a
black candidate. In the later Johnson case, the employer was trying to
blunt the effect of a pattern in which women traditionally did not work
on highway jobs, much less as supervisors of highway work. The pred-
icate of a societal pattern of discrimination allowed the employer to
engage in an affirmative action program that gave female candidates
an “adder” in the evaluation process. Unlike the Weber affirmative ac-
tion program, Johnson did not utilize a fixed numerical ratio. Johnson
happened to involve a public employer, but the case was brought under
Title VII. Neither Title VII case required that the employer have ac-
tually engaged in prior discrimination in order to be allowed to correct
workplace imbalances. Under the current case law, in the language of
Weber, an employer may take limited affirmative action steps to elim-
inate “manifest racial imbalances in traditionally segregated job cate-
gories.” The plan must be of limited duration and must not “unneces-
sarily trammel” the interests of nonminority workers. The achievement
of diversity is not the directly articulated justification for these deci-
sions, but it is the indirect consequence of allowing the employer to
correct prior patterns of discrimination.
In contrast, the cases that involve constitutional challenges to af-
firmative action programs of public employers say that the correction
of a societal pattern of discrimination is not enough to allow the em-
ployer to engage in affirmative action. Rather, the affirmative action
may only be upheld if it is a direct response to the employer’s own past
discrimination, arguable or provable, and if the remedy is narrowly
tailored so that it does not upset expectations of the nonminority em-
ployees. Perhaps the most comprehensive exposition of the law under
the Constitution is Wygant v. Jackson, in which the Court struck down
a school board’s efforts to protect recently hired black teachers from
layoffs that were based on seniority, where those layoffs would undo
some of the school’s progress in hiring minority teachers. The Court
made clear that in constitutional cases “societal discrimination alone”
is not sufficient to justify a racial classification. Justice O’Connor’s con-
currence in Wygant suggests that the goal of faculty diversity might be
a valid basis for affirmative action, but observes that such a goal was
not urged to support the program in the courts below.
Although the Grutter Court did not expressly address the impact
of the case upon the employment field, Grutter may shed some light on
the future of affirmative action in the workplace.
First, had Grutter come out the other way, it would have cast an
overwhelming shadow upon the continued use of affirmative action in
Copyright 2003 American Bar Association

The Editor’s Page
the workplace. A contrary decision would have meant that either the
Court did not think that diversity of the student body is a legitimate
goal in higher education, or that even if the goal of diversity was worthy,
the program was too rigid in its approach. Had diversity failed as a
permissible goal for higher education, I doubt that its implicit role in
the workplace cases would have survived either.
In upholding the law school’s affirmative action plan, the Court
gives some signals that affirmative action may still be acceptable in the
workplace. The parallels between higher education and the workplace
were obvious to the Court, as it cited several employment law cases to
support its views on education. As Professor Hylton points out in her
paper, the Court also discussed several amicus briefs that argue that
diversity in higher education is important because higher education
must prepare students to work in “an increasingly diverse workforce
and society,” and that the “skills needed in today’s increasingly global
marketplace can only be developed through exposure to widely diverse
people, cultures, ideas, and viewpoints.” The Court’s references to them
suggests that the Court thinks that there are values of diversity in the
workplace, and consequently values of training a diverse student body
to participate in that workforce.
The Grutter Court observed that some of the language in the em-
ployment affirmative action cases “might be read to suggest that rem-
edying past discrimination is the only permissible justification for race-
based government action. . . . But we have never held that the only
governmental use of race that can survive strict scrutiny is remedying
past discrimination.” While focused only on higher education, the
Court’s statement suggests that the goal of diversity in the workplace
may by itself be sufficient predicate for affirmative action. I doubt that
it will be necessary to test this proposition as long as occupational pat-
terns of discrimination remain, for they are enough under existing law
to justify an affirmative action program.
If Grutter can be read as a continuing affirmation of the value of
affirmative action programs in the workplace, it clearly places con-
straints upon the nature and scope of such programs. The Grutter Court
devoted a section of its opinion (II-B) to emphasizing that the means
used to achieve diversity must be narrowly tailored. In contrast to Grut-
, the affirmative action program used for undergraduate admissions
at the University of Michigan (in Gratz v. Bollinger) was too mechanical
and insufficiently flexible to pass muster. The Grutter Court cited em-
ployment law cases for the proposition that the program must be drawn
narrowly—in particular, Johnson, the Title VII case. The choice of
Johnson as the relevant Title VII precedent may be significant. The
case on my watch, Weber, involved an affirmative action program in
which one out of every two positions in the apprenticeship program was
reserved for a black employee. White employees, in other words, were
Copyright 2003 American Bar Association

blocked out of 50 percent of the openings. In contrast, the Johnson
program called for adders to be given to woman applicants. Unlike We-
, there were no fixed numerical allotments, and no male applicant
was barred from consideration for any opening. The Court’s decision to
cite Johnson, and not Weber, together with its rejection of the under-
graduate affirmative action program in Gratz, may signal that the
Court will have little tolerance for an affirmative action program in the
workplace that involves fixed numbers.
At the end of her opinion in Grutter, Justice O’Connor stresses that,
as stated in some of the employment law cases, the affirmative action
program should have a termination point. Justice O’Connor says she
expects that in twenty-five years racial preferences will no longer be
necessary to further the interests approved in Grutter. This suggests
that the Court will not tolerate workplace affirmative action programs
that continue that far into the future.
I’ve used this space to give my own take on the implications of
Grutter for our work as labor and employment lawyers, leaving little
room to say more about Professor Hylton’s excellent paper. But I un-
derscore one point. During her speech in San Francisco, Professor Hyl-
ton pointed out that there were some two dozen employment law cases
before the Court this term, but that the number of cases involving the
National Labor Relations Act (NLRA) was a big, round zero. Shall we
pat ourselves on the back and say that because of our work as lawyers,
the Act is so settled that no more interpretation is required? Or does
the Court think the Board cases are of dwindling importance in labor
and employment law? While the Board’s work stayed beneath the
Court’s radar in 2002–2003, you will find in this issue three articles
that discuss NLRA issues, suggesting they are still of significance to
practitioners. Our other articles deal with sexual harassment issues
under Title VII and the criteria for upholding agreements to arbitrate
statutory rights. A glance at the table of contents should get your in-
Robert J. Rabin
(Editor’s Note: The full cites of the employment law cases I’ve men-
tioned are Grutter v. Bollinger, 123 S. Ct. 2325 (2003) (The quotations
from the amicus briefs in Grutter are found at page 2340 of that opinion,
and the quotation about past affirmative action cases is found at pages
2338–39); Gratz v. Bollinger, 123 S. Ct. 2411 (2003); Lawrence v. Texas,
123 S. Ct. 2472 (2003); Johnson v. Transportation Agency, Santa Clara
480 U.S. 616 (1987); Wygant v. Jackson Bd. of Educ., 476 U.S.
267 (1986); United Steel Workers of America v. Weber, 443 U.S. 193
Copyright 2003 American Bar Association

An Analysis of the Burlington and
Faragher Affirmative Defense:
When Are Employers Liable?

Nancy R. Mansfield and Joan T. A. Gabel*
I. Introduction
After ten years of silence on the issue of sexual harassment, the
Supreme Court, in 1998, decided two landmark cases supporting a
trend toward a clearer standard for employers in sexual harassment
cases. Both Burlington Industries, Inc. v. Ellerth1 and Faragher v. City
of Boca Raton
2 elucidated employers’ vicarious liability for their super-
visors’ and managers’ sexual harassment.3 Such liability, however, is
subject to an affirmative defense that states that (1) the employer pro-
mulgated an effective sexual harassment policy/complaint system and
(2) the allegedly harassed employee failed to take advantage of the
system in place.4 The Court further clarified employer liability by hold-
ing that when a supervisor’s sexual harassment leads to a tangible job
detriment, the affirmative defense is not available, resulting in strict
liability.5 The Burlington and Faragher decisions emphasize employers’
obligations to deter sexual harassment in the workplace. Employers,
their insurers,6 and their counsel should note the varying circuit court
trends concerning whether employers bear strict liability or whether
the two-pronged affirmative defense applies.
This article investigates how the affirmative defense has evolved
in order to ascertain what will create employers’ sexual harassment
liability post Burlington and Faragher.7 In exploring this evolution, we
*Ms. Mansfield and Ms. Gabel are Associate Professors, Department of Risk Man-
agement and Insurance, Georgia State University.
1. 524 U.S. 742 (1998).
2. 524 U.S. 775 (1998).
3. Burlington, 524 U.S. at 765; Faragher, 524 U.S. at 807–08.
4. See Faragher, 524 U.S. at 807; Burlington, 524 U.S. at 765.
5. See Faragher, 524 U.S. at 807; Burlington, 524 U.S. at 766.
6. Joan Gabel, Nancy Mansfield et al., Evolving Conflict Between Standards for Em-
ployment Discrimination Liability and the Delegation of that Liability: Does Employment
Practices Liability Insurance Offer Appropriate Risk Transference?,
4 U. PA. J. LAB. &
EMP. L. 1 (2001).
7. Circuit court decisions addressing Burlington and Faragher include Barrett v.
Applied Radiant Energy Corp., 240 F.3d 262 (4th Cir. 2001); Gentry v. Export Packaging
Co., 238 F.3d 842 (7th Cir. 2001); O’Rourke v. City of Providence, 235 F.3d 713 (1st Cir.
2001); Star v. West, 237 F.3d 1036 (9th Cir. 2001); Madray v. Publix Supermarkets, Inc.,
208 F.3d 1290 (11th Cir. 2000); White v. New Hampshire Dep’t of Corrections, 221 F.3d
254 (1st Cir. 2000); Brown v. Perry, 184 F.3d 388 (4th Cir. 1999); Caridad v. Metro-North
Copyright 2003 American Bar Association

19 THE LABOR LAWYER 107 (2003)
first give context to the history of sexual harassment law that culmi-
nated in the standard set forth in Meritor Savings Bank, FSB v. Vin-
8 We then investigate the most recent Supreme Court standard for
employers post Meritor pioneered in Burlington and Faragher. Next,
we examine the federal courts’ analysis after Burlington and Faragher,
which addresses when an employer may successfully avoid sexual ha-
rassment liability and when an employer will be strictly liable. Finally,
we explore the practical consequences of this precedent.
II. Evolution of Employer’s Liability Prior to Meritor
In Title VII Congress addressed the specific issue of workplace dis-
crimination.9 In Griggs v. Duke Power Company,10 the Court held that
Title VII forbids both practices adopted with a discriminatory motive
and also neutral practices that have a discriminatory effect on minor-
ities and women.11
Congress built upon the Griggs decision when it passed the Civil
Rights Act (CRA) of 1991.12 The CRA of 1991 emphasized the deterrent
effect of financial liability by providing compensatory and punitive
damages for disparate treatment lawsuits brought by private plain-
tiffs.13 Congress created “Title VII’s remedial scheme to provide mon-
etary damages for intentional gender and religious discrimination.
Commuter R.R., 191 F.3d 283 (2d Cir. 1999); Durham Life Ins. Co. v. Evans, 166 F.3d 139
(3d Cir. 1999); Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999); Indest v. Freeman Deco-
rating, Inc., 164 F.3d 258 (5th Cir. 1999); Montero v. Agco Corp., 192 F.3d 856 (9th Cir.
1999); Shaw v. Autozone, Inc., 180 F.3d 806 (7th Cir. 1999); Watts v. Kroger Co., 170 F.3d
505 (5th Cir. 1999); Phillips v. Taco Bell Corp., 156 F.3d 884 (8th Cir. 1998).
8. 477 U.S. 57, 72 (1986).
DISCRIMINATION 85–86 (2000) (defining and explaining Title VII). Title VII provides:
It shall be an unlawful employment practice for an employer (1) to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms conditions, or
privileges of employment because of such individual’s race, color, religion, sex
or national origin.
42 U.S.C. § 2000e-2(a) (1994); see EEOC No. 915.002, June 18, 1999, Enforcement Guid-
ance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, available
at (last visited Apr. 23, 2003) [hereinafter,
EEOC Guidance] (stating that while Title VII and related legislation purports to remedy
discrimination, “their primary purpose is to prevent violations”); id. § I.
10. 401 U.S. 424 (1971).
11. Id. at 432.
12. PUB. L. NO. 102–166, 105 Stat. 1071 (1991) (codified at 42 U.S.C. § 2000e et seq.).
13. See id. Among the stated motivations driving the Act’s passage was “the need to
overturn Price Waterhouse [v. Hopkins],” 490 U.S. 228 (1989), which Congress believed
had severely undercut Title VII’s effectiveness. See H.R. REP. NO. 102–40(I) at 45 (1991).
In Price Waterhouse, the Supreme Court held that an employer who made an employment
decision that was based on discrimination could escape liability if it could prove that it
would have made the same decision in the absence of discrimination. See Price Water-
490 U.S. at 258. This holding undermined Title VII’s intent to completely eliminate
intentional discrimination.
Copyright 2003 American Bar Association

Analysis of the Burlington and Faragher Affirmative Defense
Monetary damages simply raise the cost of an employer’s engaging in
intentional discrimination, thereby providing employers with addi-
tional incentives to prevent intentional discrimination in the workplace
before it happens.”14
Following Congress’s emphasis on employer liability, cases inter-
preting Title VII have evolved to motivate employers to curb wrongful
behavior.15 Courts quickly recognized that “quid pro quo” sexual ha-
rassment—the demanding of sex as a condition for receiving job bene-
fits—violated Title VII.16 Recognition of quid pro quo causes of action
represented only a small step in the law’s evolution, however. Meritor
offered a new analysis when it used agency principles to develop a vi-
carious liability standard.17 In addition, the Meritor Court held that
Title VII encompassed “hostile work environment” harassment.18
(Because of the Meritor Court’s incorporation of vicarious liabil-
ity, however, lower courts developed differing standards for employer
liability based on differing interpretations of agency principles.)
14. H.R. REP. NO. 102–40(I) at § XI (1991) (minority views of Reps. Bill Goodling,
E. Thomas Coleman, Steve Gunderson, Harris W. Fawell, Cass Ballenger, Susan Moli-
nari, Bill Barrett, John A. Boehner).
15. See, e.g., City of Riverside v. Rivera, 477 U.S. 561 (1986); Burlington, 524 U.S.
742; Faragher, 524 U.S. 775. In recognizing sexual harassment as Title VII discrimina-
tion, the Court has relied, among other principles, on the power theory represented in
the writing of Catherine MacKinnon and others. See, e.g., CATHERINE MACKINNON, SEX-
UAL HARASSMENT OF WORKING WOMEN 57–99 (1979). Such theories asserted that women
are treated differently as a group because they lack equal power to men, and that sexual
harassment perpetuates the power imbalance. MacKinnon therefore defined sexual ha-
rassment as “the unwanted disposition of sexual requirements in the context of a rela-
tionship of unequal power.” Id.; see also, Joanna P. L. Mangum, Note, Wrightson v. Pizza
Hut of America, Inc.: The Fourth Circuits “Simple Logic” of Same-Sex Sexual Harassment
Under Title VII,
76 N.C. L. REV. 306, 320 (1997).
16. See Ellen Frankel Paul, Sexual Harassment as Sex Discrimination: A Defective
Paradigm, 8 YALE L. & POL’Y REV. 333–36 (1990).
17. See Meritor, 477 U.S. at 70–72 (relying upon Restatement (Second) of Agency
§ 219 (1958), which states:
(1) A master is subject to liability for the torts of his servants committed while
acting in the scope of their employment.
(2) A master is not subject to liability for the torts of his servants acting out-
side the scope of their employment, unless:
(a) the master intended the conduct or the consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal and
there was reliance upon apparent authority, or he was aided in accom-
plishing the tort by the existence of the agency relation.
18. See Meritor, 477 U.S. at 67. Hostile work environment harassment occurs when
harassing conduct “unreasonably interfere[s] with an individual’s work performance or
creat[es] an intimidating, hostile, or offensive working environment.” Paul, supra note
16, at 334 (quoting Equal Employment Opportunity Commission Guidelines on Discrim-
ination Because of Sex, 29 C.F.R. § 1604.11(a) (1990)). The Meritor Court held that to
establish a hostile working environment claim, harassment must be severe and perva-
sive. See Meritor, 477 U.S. at 67.
Copyright 2003 American Bar Association

Document Outline

  • THE LABOR LAWYER Volume 19 € Number 2 Fall
    • The Editors Page
    • An Analysis of the Burlington and Faragher Affirmative Defense: When Are Employers Liable?
    • How (Not) to Litigate a Sexual Harassment Class Action
    • Undocumented Workers and the NLRA: Hoffman Plastic Compounds and Beyond
    • Hoffman Plastic Compounds v. NLRB: The First Step?
    • One Bite of the Apple and One of the Orange: Interpreting Claims
    • The Impact of BE&K Construction Co. v. NLRB on Employer Responses to Union Corporate Campaigns and Related Tactics
    • The Supreme Courts Labor and Employment Decisions: 2002…2003 Term