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Identifying Employers’ “Proxies” in Sexual-Harassment Litigation

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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. An employer’s affirmative defense is unavailable when the harasser is a “proxy” of the employer. But who constitutes a proxy? The Supreme Court has provided little guidance on who constitutes a proxy, and the federal circuit courts have struggled to apply the existing doctrine 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 yardstick for identifying proxies. Specifically, the courts should find that proxies are those who have the capability to impute intent to an employer by making policy for the employer. The courts should empirically locate those policy-making capabilities by looking to employers’ “Corporate Internal Decision Structures.” This approach 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.



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