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University of San Diego School of Law




In two decisions concerning sexual harassment, Faragher v. City of Boca Raton' and Burlington Industries, Inc. v. Ellerth,2 the Supreme Court, on the last day of its 1997-1998 term finally articulated coherent vicarious liability rules critical for bounding the scope of the discrimination prohibitions in Title VII of the Civil Rights Act of 1964.3 The Court did so by explaining the meaning of the inclusion of "any agent" in Title VII's definition of "employer.'" The meaning of "agent" in this definition is critical for establishing employer liability because almost all Title VII-protected employees work for corporations and other legal fictions which can act, and thus discriminate, only through human agents The scope of Title VII, moreover, in part turns derivatively on the definition of "agent" because the Act's proscriptions do not render discriminating employees individually liable.

Perhaps appreciating that a restrictive interpretation of "agent" could qualify Title VII's promise, courts consistently have held firms liable for the discriminatory decisions of some of their employees when the formal employment status of other employees is changed-such as through discharge, suspension, hiring, promotion, demotion, or compensation increase or decrease.7 The recognition by courts that Title VII may protect employees who suffer discrimination in working conditions, even when their formal job status is not changed, however, has presented more difficult questions regarding when employers should be held responsible.9

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