Sexual Harassment in the United States. Mary Welek Atwell

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Sexual Harassment in the United States - Mary Welek Atwell


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Marshall’s concurring opinion was joined by Justices Brennan, Blackmun, and Stevens. They agreed that both forms of sexual harassment were violations of Title VII, but differed with the majority regarding employer ←27 | 28→liability. The minority who joined the concurrence would follow EEOC Guidelines that hold an employer responsible for the “acts of its agents and supervisory employees with respect to sexual harassment regardless whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.” As for conduct between employees, the employer is also responsible “unless it can show that it took immediate and appropriate corrective action.”42 Justice Marshall pointed out that discrimination is rarely a matter of formal company policy, but is carried out by individuals. He cited applications of federal labor law where the act of a supervisory employee is imputed to the employer in cases of racial discrimination. Courts of Appeals have applied the same responsibility in cases of sexual harassment. Holding employers liable in instances of quid pro quo harassment but not in hostile environment situations seemed an untenable position. Supervisors not only hired and fired employees, they were also “charged with the day-to-day supervision of the work environment and with ensuring a safe, productive workplace. There is no reason why abuse of the latter authority should have different consequences than abuse of the former.”43 Marshall’s view did not carry the day in Meritor Savings Bank v. Vinson. The question of employer liability in cases of sexual harassment remained unresolved. It was one of several issues raised by critics of the decision.

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