Ithaca, NY, January 23, 2017 – Courts across the United States are in a potentially awkward position when they are presented with employers’ summary judgment motions relating to sexual harassment. As explained in a new Cornell report, judges often have to choose between following legal precedent or breaking the rule established by the Supreme Court. As explained in the report, “When Rules Are Made to Be Broken: The Case of Sexual Harassment Law,” by David Sherwyn, Nicholas F. Menillo, and Zev J. Eigen, the courts often choose to break the rules. Sherwyn is a professor of law at the Cornell School of Hotel Administration and director of the Cornell Institute for Hospitality Labor and Employment Law (CIHLER), which has issued the report. Menillo is an associate with Sullivan & Cromwell, and Eigen is the global director of data analytics at Littler Mendelson.

Their report presents a theoretical assessment and empirical analysis of judicial rule breaking with regard to two rules relating to sexual harassment. The first such rule, established in the Oncale decision, opened the door to the “equal-opportunity harasser,” who treats everyone badly and thus escapes the prohibition on harassment “due to sex.” The courts have generally followed this rule.

The other rule, set forth in the Ellerth and Faragher decisions, establishes a two-prong requirement for companies to demonstrate that they should not be held liable in the case of sexual harassment of an employee. The first prong is that the employer acted reasonably in relation to a complaint, and the second is that the employee acted unreasonably, usually indicated by a tardy complaint. Sherwyn and his co-authors concluded that judges are inclined to break the Ellerth/Faragher rule and find for the employer when they perceive that an employer that is otherwise meritorious could be held liable.

“We conclude that courts follow Oncale, even though it can yield an unjust outcome, because they see small repercussions,” said Sherwyn. “On the other hand, following the Ellerth and Faragher precedents would result in an unjust outcome with larger repercussions—which would be that an employer who has done the right thing still has to pay for the actions of a wayward employee.”

The authors point out that this analysis now points toward the outcome of yet another test, which was established in the Vance case. Here the Supreme Court removed most supervisors from the position of company agent (and therefore incurring liability for the employer if the supervisors are accused of sexual harassment) unless those supervisors also determine working conditions, such as pay and employment.