99 Iowa L. Rev. 1785 (2014)

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Abstract

The Supreme Court’s companion decisions of Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton represent the modern framework governing employer liability in sexual-harassment suits. The opinions organize the basic rules for employer liability, its affirmative defense, and unique situations where the affirmative defense is unavailable. The affirmative defense is unavailable when the harasser is a “proxy” of the employer. The Supreme Court has provided little guidance on who constitutes a proxy, and the circuits have struggled to apply the Supreme Court’s language with much consistency. This Note proposes that the courts utilize a suggestion from Ellerth that has gone ignored: the courts should use the concept of corporate intent as a conceptual yardstick for identifying proxies. Specifically, the courts should find that proxies are those who have the capability of imputing intent to an employer-corporation (or other business entity) because those proxies have the power to make policy for an employer. The courts should empirically locate those policy-making capabilities by looking to employers’ “Corporate Internal Decision Structures.” The use of corporate intent, policy-making powers, and internal-decision-structure concepts shows fidelity to the Court’s jurisprudence; provides for a more objective and flexible standard for identifying proxies; and does not suffer from the problems that plague some alternative methods. This Note’s proposal thus ameliorates a problem infecting current proxy-liability analysis in the courts.