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Sexual Harassment
The comedian George Carlin once asked, “If you try to fail and succeed, which have you done?” A similar question arises in the context of sexual harassment: If a supervisor demands sexual favors of his subordinate and she silently acquiesces to keep her job, does she have a claim of sexual harassment against her employer? Despite the Supreme Court's many pronouncements on sexual harassment, the answer to that precise question is still unresolved.
A partial, but critically incomplete answer was given in Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In Meritor, an employee named Michelle Vinson claimed that her supervisor made repeated demands for sexual favors and, because she feared losing her job if she refused, she had engaged in voluntary sexual intercourse with him on 40 or 50 occasions. The decision in Meritor made clear that even a consensual sexual relationship can become actionable sexual harassment if the sexual episodes are unwelcome and so severe or pervasive as to alter the terms and conditions of employment. But was the employer liable to Vinson for the successful sexual importunings of its supervisory employee?
To a minority of three justices, the answer was clearly yes, since each supervisor is “understood to be clothed with the employer's authority,” 477 U.S. at 97 (Marshall, J., concurring), but the majority “decline[d] … to issue a definitive rule on employer liability,” saying, somewhat cryptically, that the courts should “look to [common-law] agency principles for guidance.” Id. at 72.
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