An Affirmative Defense to Sexual Harassment by Managers and Supervisors: Analyzing Employer Liability and Protecting Employee Rights in the United States

Sexual harassment in the workplace is a serious worldwide employment problem. In the United States, courts have taken an increasingly expansive view of both employers' obligations and employees' rights in dealing with the issue. Landmark decisions of the U.S. Supreme Court addressing harassment by supervisors have sought to provide further guidance to employers in order to prevent harassment and refine their obligations. Yet despite the Court's efforts, harassment claims brought on by supervisor conduct continue to be a matter of great concern. This article offers a brief overview of U.S. sexual harassment law including its affirmative defense and provides a decision protocol for employers operating in the U.S. to follow in determining whether or not an affirmative defense can be confidently asserted. Finally management practices that respond to legal principles of an affirmative defense to prevent liability and protect employee rights are presented and discussed.