Title: All in a Day's Work: Employers' Vicarious Liability for Sexual Harassment
Abstract: Most commentators on the issue of employer liability for sexual harassment have focused on the underlying political issues: how big a problem is sexual harassment and how can we make it go away. In the process, they assume that the usual rules of vicarious liability would not hold an employer liable for sexual harassment because harassment is not within the scope of employment. In this Article, Professor Dalley demonstrates that this erroneous conclusion rests, first, on a misunderstanding of the law of vicarious liability, and second, on a misunderstanding of the nature of sexual harassment. A careful analysis of agency law reveals its basic underlying principle: that a business must bear the costs, as well as retain the benefits, of its operations. That principle underlies vicarious liability doctrine and illuminates the independent contractor exception and the scope of employment requirement. Thus, a tort is within the scope of employment if its occurrence is a foreseeable risk of the business involved. Drawing from the psychological and sociological literature studying sexual harassment, which finds that harassment tends to arise from the interaction of personal predilections with certain workplace environments, Professor Dalley argues that sexual harassment is within the scope of employment where the business involved enhances the risk that sexual harassment will occur. In such cases, agency principles require that the business bear that increased risk.
Publication Year: 2002
Publication Date: 2002-01-01
Language: en
Type: article
Access and Citation
Cited By Count: 1
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot