Article: Operating in an empirical vacuum: the Ellerth and Faragher affirmative defense.

"Oh dear, what nonsense I'm talking." (1)

There is a classic management article by Professor Steven Kerr entitled On the Folly of Rewarding A, While Hoping for B. (2) Its thesis is simple: reward systems often are structured so that they discourage desired behavior and encourage unwanted behavior. The federal courts' decisions on the affirmative defense in cases of sexual harassment by supervisors illustrate Kerr's thesis.

In Burlington Industries v. Ellerth, (3) and Faragher v. City of Boca Raton, (4) the Supreme Court created a two-pronged affirmative defense to employer liability in certain cases of workplace harassment by supervisors. The Court did ...

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