Law Commons^™

The Disappearing Dilemma: Why Agency Principles Should Now Take Center Stage In Retaliation Cases, Sandra F. Sperino

Faculty Articles and Other Publications

In Burlington Northern Santa Fe Railroad v. White, the Supreme Court soundly rejected the idea that the plaintiff must establish that conduct rose to the level of an adverse employment action to constitute retaliation under Title VII. This Article posits that, in an effort to square Burlington with other Title VII agency jurisprudence, the courts will be required to re-import the concept of tangible employment action into decisions regarding whether an employer is vicariously liable for actions committed by supervisors.

While the lower courts appear to recognize that agency issues come into play when retaliation is conducted by co-workers, …

License To Harass: Holding Defendants Accountable For Retaining Recidivist Harassers, Kerri Lynn Stone

Faculty Publications

Harassment victims who suffer a "tangible employment action," which the Supreme Court defines as a "significant change in employment status such as hiring, firing, failure to promote, reassignment, or a decision causing a significant change in benefits," enjoy unfettered recourse when they sue their employers. However, victims who do not endure what a court will deem a "tangible employment action" will have their prima facie case of harassment then rendered vulnerable to the interposition of an affirmative defense by a defendant-employer, who will escape liability if it can show "(a) that the employer exercised reasonable care to prevent and correct …