#EmployersToo: Expanding Vicarious Liability for Sexual Harassment in Title VII and Tort Law

Kassandra "Kassie" Fotiadis* November, 2024

When an individual experiences sexual harassment through a workplace, she has limited options for recourse. One seemingly promising possibility is bringing a claim against her perpetrator’s employer. But this option—achievable through vicarious liability—has failed to realize its potential. In 1998, the U.S. Supreme Court established a standard to enforce vicarious liability for sexual harassment claims under Title VII. That standard, though, was limited in scope to begin with and has further narrowed over time. Common law principles also allow courts to hold employers vicariously liable for sexual harassment in tort. But few jurisdictions have adopted those principles, and there is no unified system governing all jurisdictions.

This Note makes the case for expanding vicarious liability for sexual harassment claims, both under Title VII and in tort. Workplace sexual harassment is an epidemic that we know more about now than ever before, and that is in dire need of solutions. Expanding vicarious liability is one such way to address sexual harassment, and now is the time to act. Almost a decade out from the #MeToo movement, its accompanying revelations about work and violence, and its resulting individual accountability, this Note contends that employers must be held accountable, too.

Introduction

On July 9, 1998, a nursing assistant at Hurley Medical Center in Flint, Michigan, sexually assaulted patient Marian Zsigo when she was at her most vulnerable.¹ Earlier that day, Ms. Zsigo had a manic depressive episode for which she was admitted to Hurley’s emergency department.² Hospital personnel placed Ms. Zsigo in restraints because she was “yelling” and “kicking,” and then they left her in a treatment room with a nursing assistant.³ While Ms. Zsigo was still physically restrained and in the midst of her depressive episode, the nursing assistant tasked with caring for her proceeded, instead, to sexually assault her.⁴ Three days later, Ms. Zsigo disclosed the sexual assault to a social worker who reported it to law enforcement.⁵ She eventually brought a tort claim against Hurley in an attempt to both hold the perpetrator’s employer accountable for what it had enabled the perpetrator to do and to get compensated for all she had lost.⁶ Specifically, Ms. Zsigo sought a judgment that Hurley was vicariously liable for the sexual assault.⁷

Seven years after the assault, however, the Michigan Supreme Court held that Hurley was not vicariously liable.⁸ The court came to this conclusion even though the perpetrator’s authority as a medical professional, provided by Hurley, and his direct access to Ms. Zsigo, enabled by Hurley, are what allowed him to sexually assault her.⁹ The court’s holding also explicitly diverged from other state supreme court decisions based on similar facts.¹⁰ One year earlier, in Doe v. Forrest, the Vermont Supreme Court denied summary judgment for an employer, holding that a reasonable jury could find a sheriff’s department vicariously liable for its police officer’s sexual assault of a twenty-year-old cashier at a convenience store.¹¹ Despite the similarities between Zsigo and Forrest—including the vulnerability of the victims,¹² the authority of the perpetrators over the survivors, and the on-duty timing of the assaults—the Michigan and Vermont Supreme Courts came to opposite conclusions. The Michigan court held that whether an employment position aided a perpetrator in accomplishing a sexual assault was irrelevant,¹³ while the Vermont court declared that the very same consideration justified employer liability.¹⁴

Supporters of the Zsigo holding might argue that Ms. Zsigo could have, and should have, sought justice in some other way. For example, she could have pursued legal action against her perpetrator himself, instead of her perpetrator’s employer. But these alternatives are not open or optimal for every survivor.¹⁵ And, as this Note argues, they do not address the systemic issues underlying sexual harassment.¹⁶

Given the inadequacy of the alternatives, this Note shows the need for expanding employer vicarious liability for sexual harassment both under Title VII and in tort. This Note is one of the first to examine vicarious liability since the #MeToo movement. In 2006, Tarana Burke coined the phrase “Me Too”¹⁷ and founded the movement.¹⁸ #MeToo reached its height in 2017, when actress Alyssa Milano used the hashtag “#metoo” on social media and received twelve million responses within twenty-four hours.¹⁹ Thereafter, the #MeToo movement shed light on how positions of authority enable harassers to harass. One of the most infamous examples was Harvey Weinstein, who lured dozens of employees and actresses into his hotel rooms by telling those women he saw promise in them or wanted to cast them in a movie—and then sexually harassed them.²⁰

More broadly, #MeToo made clear to the world that sexual harassment pervades all workplaces and that certain employment environments have a particular propensity for sexual harassment.²¹ Studies conducted since #MeToo have found that 38% of women,²² 14% of men,²³ 68% of disabled women,²⁴ and 68% of LGBTQ+ individuals²⁵ have been sexually harassed at work.²⁶ Women of color experience workplace sexual harassment at higher rates than their white counterparts.²⁷ This is consistent with the ample evidence that women of color experience disproportionately high rates of all forms of sexual violence.²⁸ Notably, these numbers account only for individuals sexually harassed while at their own places of work; the studies leave out the many cases in which perpetrators sexually harass non-employees with whom they come into contact at work.²⁹

Workplace sexual harassment varies significantly by industry. The “accommodation and food services” industries see the highest rates of sexual harassment, closely followed by the “retail” industry, comprising 14.23 percent and 13.44 percent of all reports, respectively.³⁰ On the other hand, in the “professional, scientific, and technical services” industries, reports of sexual harassment are significantly lower, at 5.73 percent.³¹ Perhaps surprisingly, given #MeToo’s focus on the entertainment industry, only 1.61 percent of all sexual harassment reports made to the Equal Employment Opportunity Commission (EEOC) arise from “arts, entertainment, and recreation” settings.³² A noticeable trend emerges from these numbers: Employees working in lower-paid jobs are more likely to be sexually harassed.³³

Protections for sexual harassment victims need to match the urgency of the problems #MeToo has uncovered. Although #MeToo has led to some legal victories,³⁴ vicarious liability standards in the civil legal system remain largely unchanged. Even so, there are signs that vicarious liability could be a new point of focus: At the time of publication, the American Law Institute is considering a new Restatement provision that would give updated guidance on vicarious liability for sexual harassment,³⁵ and courts are actively litigating the issue.³⁶

This Note advocates for uniform, expanded vicarious liability standards for sexual harassment. Title VII, despite its status as a landmark law that prohibits workplace discrimination,³⁷ protects only a narrow scope of sexual harassment survivors.³⁸ In tort, protections for sexual harassment survivors are inconsistent and underinclusive.³⁹ These reasons warrant the expansion of employer liability in both Title VII and tort law.

This Note proceeds in three parts. Part I describes the state of play of sexual harassment vicarious liability systems under Title VII and in tort. Part II makes the case for expanding and standardizing employer liability based on three rationales: (1) the purposes of vicarious liability, (2) the inability of alternative systems of justice to handle sexual harassment claims, and (3) the law’s exceptional treatment of sexual harassment compared to how it treats other misconduct. Part III poses a specific reform—application of the common law aided-in-accomplishing exception to sexual harassment claims—and recommends, for the first time, uniform adoption of that exception for both Title VII and tort law.

I. State of Play and Current Shortcomings

Courts have long adjudicated the vicarious liability question under both Title VII and tort law standards. Yet these areas of law have come to look different over time. This Part describes the state of play of vicarious liability for sexual harassment under Title VII and in tort, emphasizing the differences between the systems and deficiencies in each.

A. The Uniform but Narrow Vicarious Liability Standard Under Title VII

1. History of Vicarious Liability

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment.⁴⁰ The original version of the Title VII bill protected against discrimination based on race, color, religion, and national origin—but not sex.⁴¹ It was not until the legislation’s final day of debate that the House of Representatives amended the bill to read:

“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”⁴²

Although workplace sexual harassment had been pervasive for many years by the time Congress passed Title VII,⁴³ courts did not recognize it as actionable under Title VII until the 1970s.⁴⁴ Barnes v. Costle was the first federal court of appeals decision to hold that quid-pro-quo sexual harassment—where a perpetrator solicits sex by promising favors or threatening consequences—is unlawful sex discrimination under Title VII.⁴⁵ In Meritor Savings Bank v. Vinson, the U.S. Supreme Court agreed with the Barnes court’s reasoning and expanded the scope of actionable sexual harassment further, declaring that “hostile work environment” harassment also violates Title VII.⁴⁶ In that case, Mechelle Vinson testified that her supervisor “made repeated demands” for sex and that she only said yes for “fear of losing her job.”⁴⁷ Although Ms. Vinson’s supervisor did not explicitly threaten her or promise her benefits (which is necessary to commit quid-pro-quo harassment), the Court held that harassment that is “sufficiently severe or pervasive to alter the conditions of [a] victim’s employment and create an abusive working environment” is illegal, too.⁴⁸

In Vinson, the Court also acknowledged the need for clarity on vicarious liability, given that Ms. Vinson had sued her former employer, the bank, rather than her perpetrator, the manager.⁴⁹ Before Vinson, the EEOC had released its own guidance on vicarious liability for sexual harassment under Title VII. The EEOC guidance recommended strict liability when sexual harassment was perpetrated by “agents and supervisory employees.”⁵⁰ However, the guidance left the meaning of the term “supervisory” open to case-by-case interpretations based on “the circumstances of the particular employment relationship and the job functions performed by the [perpetrator].”⁵¹ Despite having access to this guidance in Vinson, the Court declined to set a standard for vicarious liability, noting only that it “agree[d] with the EEOC that Congress wanted courts to look to [common law] agency principles for guidance in th[at] area.”⁵²

In 1998, the Supreme Court set a universal standard for sexual harassment vicarious liability claims under Title VII and in doing so, diverged from the eighteen-year-old EEOC guidance.⁵³ In one of its most influential sexual harassment cases, Faragher v. City of Boca Raton, the Court held that employers are vicariously liable for sexual harassment only if it is perpetrated by supervisors against subordinates.⁵⁴ The Court also introduced an affirmative defense that employers may raise.⁵⁵ This remains the prevailing standard today.

In coming to its decision, the Court invoked common law principles of vicarious liability.⁵⁶ The Court noted that, in tort law, courts had “typically held, or assumed, that [sexual harassment] falls outside the scope of employment.”⁵⁷ But, as the Court went on to say, the Second Restatement of Agency includes the aided-in-accomplishing exception, which applies if a perpetrator’s employment position itself aids him in accomplishing the tortious conduct.⁵⁸ The Court wrote approvingly of the exception’s rationale and specifically argued that supervisory employees are aided in accomplishing sexual harassment by their employment positions: “When a person with supervisory authority discriminates in the terms and conditions of subordinates’ employment, his actions necessarily draw upon his superior position . . . .”⁵⁹ The Court then distinguished sexual harassment by supervisors from that by co-employees, reasoning that a victim of coworker sexual harassment has the ability to “walk away or tell the offender where to go,” whereas they do not have that option if their harasser has authority over them.⁶⁰

Despite its reference to common law agency principles, the Court created a brand new standard for vicarious liability.⁶¹ Under this standard, an employer is strictly liable for sexual harassment perpetrated by supervisors against subordinates that results in tangible employment action against the victim.⁶² If, however, no tangible employment action results from the harassment, an employer can avoid vicarious liability by presenting an affirmative defense.⁶³ To succeed on this affirmative defense, an employer must show that (1) it exercised reasonable care to prevent and promptly correct sexual harassment; and (2) the survivor failed to either take advantage of internal preventive or corrective opportunities or otherwise avoid the harm.⁶⁴

The Court hoped the new standard would strike an appropriate balance, given that sexual harassment falls outside the scope of employment and that supervisors draw upon their authority when perpetrating such harassment.⁶⁵ The Court did not acknowledge, however, that the common law aided-in-accomplishing exception—which it referred to but decided not to adopt—strikes that very same balance.⁶⁶

For fifteen years after Faragher, neither the Court nor Congress clarified who counts as a “supervisor,” despite vicarious liability hinging on precisely this question.⁶⁷ In 1999, the EEOC issued guidance defining a “supervisor” as someone who is authorized to either take tangible employment action (such as firing or demoting) against the victim or “direct the employee’s daily work activities.”⁶⁸ Some lower courts adopted the EEOC’s definition, whereas others applied a narrower one, creating a circuit split.⁶⁹

It was not until 2013 that the Court resolved that split, adopting the narrower definition.⁷⁰ In Vance v. Ball State University, the Court rejected the EEOC’s definition of “supervisor” and, once again, limited the scope of vicarious liability.⁷¹ In Vance, Maetta Vance, a dining-services employee, reported racial harassment by a more senior employee.⁷² Ms. Vance testified that her harasser did not have the ability to fire or demote her—that is, take tangible employment action against her.⁷³ Based on this fact, the Court declined to find the university liable, holding that for an employer to be liable under Faragher, the harasser must be a supervisor who can take tangible employment action against the plaintiff.⁷⁴ In other words, overseeing daily work activities was no longer sufficient to be considered a “supervisor.”⁷⁵ The Court acknowledged that it was diverging from its own previous decisions, which had “assumed that employees who direct subordinates’ daily work are supervisors.”⁷⁶ Today, plaintiffs must still litigate under Vance’s narrow definition of “supervisor.”⁷⁷

2. Shortcomings of Title VII

Although there is a uniform system for sexual harassment vicarious liability under Title VII, that system falls short of protecting everyone. As a threshold matter, Title VII gives no cause of action to nonemployees (including customers, consumers, patients, independent contractors, interns, and volunteers) sexually harassed by employees.⁷⁸ Nor can employees who are sexually harassed by coworkers, rather than supervisors, hold their harassers vicariously liable.⁷⁹ Moreover, Faragher, Vance, and their progeny have whittled the scope of vicarious liability, such that the current standard does not adequately respond to the realities of workplace sexual harassment. The remainder of this section focuses on two shortcomings in particular: Vance’s impractical definition of “supervisor” and Faragher’s employer shield in the form of the affirmative defense.

The Vance “Supervisor.” Vance’s definition of “supervisor” contravenes Faragher’s goal of extending vicarious liability when a perpetrator leans on his authority to harass. In her Vance dissent, Justice Ruth Bader Ginsburg denounced the majority’s definition, predicted several of its real-world impacts, and warned that the holding “disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.”⁸⁰ Saliently, Justice Ginsburg noted that the narrowed definition is not at all reflective of “the realities of the workplace,” wherein employees who technically lack hiring or firing power but still have significant authority may take advantage of that authority to harass subordinates.⁸¹ For instance, a shift manager at a restaurant may not have tangible-employment-action power but could still economically and, thus, materially control the livelihoods of servers by retaining the power to assign them to undesirable shifts or even to no shifts at all. But that shift manager’s harassment would not give rise to vicarious liability under Vance.⁸²

Justice Ginsburg’s predictions, as well as other scholars’ warnings in the aftermath of Vance,⁸³ have largely proven to be true. The Court’s new definition made sexual harassment claims harder to win. In a review of 245 federal sexual harassment cases from the five years after Vance in which the parties contested supervisory status, Jennifer A.L. Sheldon-Sherman found that in 29 percent of cases, supervisory status was “dispositive” in favor of the defendant-employer. ⁸⁴ In many of the cases where perpetrators were deemed nonsupervisors, these courts ignored that the perpetrators actually possessed and then leveraged significant control over their plaintiff-victims.⁸⁵

The Faragher Shield. Employers are strictly liable for almost every form of employment discrimination; yet, in the sexual harassment context, they avoid liability by asserting the Faragher affirmative defense.⁸⁶ And that affirmative defense provides employers with a strong, and oftentimes impenetrable, shield. Precedent suggests that when the affirmative defense is available, courts “operate under an unspoken presumption in favor of defendants.”⁸⁷

An employer can easily clear the first prong—that the employer exercised reasonable care to prevent and promptly correct the sexual harassment—by demonstrating it has a sexual harassment policy, even if that policy is nominal and does not actually reduce harassment. In a review of 200 federal sexual harassment cases where the affirmative defense was available, Anne Lawton found that courts in “virtually every circuit” viewed a sexual harassment policy as decisive proof that the employer had satisfied the first prong.⁸⁸ Alarmingly, courts do not grapple with whether defendants’ policies are effective at reducing sexual harassment or encouraging employees to report harassment; they do not even require employer-defendants to claim, let alone demonstrate, such effectiveness.⁸⁹ And it’s lucky for employers that courts don’t ask them to do so—there is little to no empirical evidence that existing sexual harassment policies, or even trainings, are effective in reducing perpetration.⁹⁰ Because judicial analyses of employers’ efforts to prevent and address sexual harassment are so surface-level, they create a negative feedback loop; a court’s holding of no liability itself “incentivizes employers to focus on symbolic compliance and avoidance of liability, rather than genuinely provide effective prevention and correction of sexual harassment.”⁹¹

In most circuits, employers can easily satisfy the second prong of the affirmative defense—that the employee failed to take advantage of internal corrective opportunities or otherwise avoid harm—by showing that a survivor minimally delayed reporting or chose to informally report.⁹² In 2018, the Third Circuit questioned this longstanding principle and held that choosing not to internally report is not per se unreasonable.⁹³ Instead, the court decided, the reasonableness of not reporting is a jury determination, and, thus, courts should not dismiss a case in which the plaintiff did not internally report at the pleadings stage.⁹⁴ The Third Circuit remains the minority, though.⁹⁵ The year after the Third Circuit decision came down, the Seventh Circuit reinforced the majority view in Hunt v. Wal-Mart Stores, Inc. and held that waiting only four months to internally report sexual harassment was unreasonable as a matter of law, despite plaintiff Tristana Hunt explaining that she initially did not report out of fear of retaliation.⁹⁶ The court was not persuaded by Ms. Hunt’s explanation and instead asserted that “an employee’s subjective fears of confrontation, unpleasantness or retaliation do not alleviate [her] duty to” formally report in a timely manner.⁹⁷ Other courts have held that even shorter delays in reporting were unreasonable: The Tenth Circuit found a two-month reporting delay decisive in favor of the employer,⁹⁸ and the Northern District of Oklahoma concluded that waiting seventeen days to report was too long.⁹⁹

Requiring a plaintiff to formally report in a narrow time frame does not reflect the realities of workplace sexual harassment. In fact, the overwhelming majority of survivors (87–94 percent) do not report through formal, internal mechanisms.¹⁰⁰ Some studies indicate that women are more likely than men to gravitate toward informal reporting options (such as disclosing to trusted colleagues), and others show that survivors choose not to formally report because of a fear of retaliation by their perpetrators or workplaces, the risk of a breach of confidentiality by the colleague to whom they would disclose harassment, and self-blame, among other reasons.¹⁰¹ Yet rather than contemplating why survivors may not be comfortable reporting, most courts consider a survivor’s reluctance to do so as completely destructive of their claim, even in the wake of the most severe incidents of sexual harassment.¹⁰² As Brianna Messina has pointed out, “If the Faragher[] defense had been applied to the facts of [Vinson], it is unlikely that a lower court would have found that the defendant-employer was liable . . . because the plaintiff never reported the harassment . . . .”¹⁰³

Unsurprisingly, given the ease of proving both of the Faragher prongs, there is an “overwhelming tendency for employers to win on the affirmative defense.”¹⁰⁴

B. The Lack of a Consistent and Protective Vicarious Liability Standard in Tort

Unlike under Title VII, there is no uniform vicarious liability standard for sexual harassment cases in tort.¹⁰⁵ Cases across jurisdictions, and even within the same jurisdiction, conflict.¹⁰⁶ Even so, one definitive trend emerges: Most states do not hold employers vicariously liable for sexual harassment.¹⁰⁷ This Section begins with a general overview of approaches to vicarious liability in tort law. It then presents conclusions from the first-ever national survey of state supreme court opinions on vicarious liability for sexual harassment. Finally, it provides updates on the American Law Institute’s recent efforts in this realm.

1. Approaches to Vicarious Liability in Tort

a. Scope of Employment

In tort, employers are vicariously liable for torts committed by their employees while acting within the scope of employment.¹⁰⁸ The Second Restatement provides a relatively detailed description of what is “within the scope of employment,” stating,

(1) Conduct of a[n employee] is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the [employer], and
(d) if force is intentionally used by the [employee] against another, the use of force is not unexpectable by the [employer].¹⁰⁹

The Third Restatement is briefer, with a focus on factor (c) from the Second Restatement:

“An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.”¹¹⁰

When faced with vicarious liability questions, courts can either model their analyses on either Restatement or craft their own scope-of-employment tests. Most courts have decided to do the latter, adopting one of two tests: “Motive to Serve” or “Enterprise Risk.”¹¹¹

Motive to Serve. One long utilized scope-of-employment test is the Motive to Serve test.¹¹² Though rooted in the Restatements,¹¹³ it considers the tortfeasor’s motivations as the only relevant factor: If a tortfeasor was not motivated by a desire to serve his employer in carrying out the tortious conduct, then that lack of motivation is decisive on its own. For instance, even if a tort occurs during working hours at a worksite—within “the authorized time and space limits” of the agency relationship per the Second Restatement¹¹⁴—a court strictly applying the Motive to Serve test would ignore time-and-space facts and consider only the tortfeasor’s motivations. Under Motive to Serve, the antipode to an act carried out for the purpose of serving the employer is an act carried out for “personal” reasons.¹¹⁵ Mixed motives are usually sufficient to establish scope of employment; so, if a survivor can show that their sexual harasser was motivated both by a purpose in service of his employer and his own personal desires or animus, that would be sufficient to establish scope of employment.¹¹⁶

Some scholars have commented that the Motive to Serve test is outdated and overly narrow, with “[p]roblems frequently aris[ing]” in its application.¹¹⁷ For instance, the test is necessarily subjective and, thus, “malleable” because it requires courts to speculate about the perpetrators’ internal motivations.¹¹⁸ These problems with the Motive to Serve test are undoubtedly present in the sexual harassment context: It is difficult to identify individual perpetrators’ motivations, and even if doing so is possible, it is quite unlikely that a perpetrator would commit sexual harassment, even partially, because they think the very act of harassment will serve their employer.¹¹⁹

Enterprise Risk. In the 1960s, some states replaced the Motive to Serve test with the Enterprise Risk test.¹²⁰ Enterprise Risk focuses on foreseeability.¹²¹ It is animated by the principle that some tortious conduct is so characteristic of an employer, typical of an enterprise, or broadly incidental to the employment relationship, that it is expectable by the employer.¹²² Other tortious conduct is an “outgrowth” of the employment relationship—the employment position itself engenders misconduct.¹²³ When it does so, the Enterprise Risk test contemplates that this misconduct, too, was likely foreseeable, if not outright inevitable. Thus, in the sexual harassment context, a plaintiff subject to the Enterprise Risk test would need to show that the sexual harassment was foreseeable, the employment relationship or setting actually engendered the sexual harassment, or both.¹²⁴ At first impression, this seems easier to do than relying on the perpetrator’s internal motivations, as a plaintiff must do in a Motive to Serve jurisdiction.

Other Tests. Some courts apply neither the Motive to Serve nor the Enterprise Risk test. Instead, some follow the Second Restatement word-for-word.¹²⁵ Others combine Motive to Serve and Enterprise Risk into a single, two-pronged approach.¹²⁶ Still others have created their own, novel scope-of-employment tests.¹²⁷

b. Outside the Scope of Employment

The Restatements clarify, however, that a tortious act need not be within the scope of employment to result in vicarious liability.¹²⁸ This Note will focus on one exception to the scope-of-employment requirement in particular—the same one referenced by the Faragher Court when it crafted its own sexual-harassment liability standard:¹²⁹ the aided-in-accomplishing exception. The exception, delineated in the Second Restatement, is as follows: “A[n] [employer] is not subject to liability for the torts of his [employees] acting outside the scope of their employment, unless . . . he was aided in accomplishing the tort by the existence of the agency relation.”¹³⁰ Several states have adopted and applied this exception specifically when adjudicating sexual harassment claims.¹³¹

2. Trends Across Jurisdictions

This Note is the first to include a nationwide survey of vicarious liability decisions arising from sexual harassment and based in tort law.

a. Scope of Employment

Methods. For all fifty states and the District of Columbia, I reviewed decisions by their highest courts to determine for each jurisdiction (1) which scope-of-employment test it uses for sexual harassment vicarious liability cases; (2) whether it has adopted the aided-in-accomplishing exception; and (3) whether it has ever held an employer liable for sexual harassment, and, if so, how consistently it tends to do so. I also reviewed secondary sources,¹³² treatises,¹³³ and American Law Institute materials.¹³⁴ I have included the survey as Appendix A.

The survey shows that the availability of vicarious liability for sexual harassment is inconsistent across jurisdictions—and sometimes contradictory even within the same jurisdiction. Overall, however, one clear trend emerges: Most courts rarely, if ever, order vicarious liability for sexual harassment in tort. In fact, only ten state high courts have explicitly and consistently found that employers can be vicariously liable for sexual harassment.¹³⁵ Meanwhile, fourteen state high courts have never found an employer vicariously liable for sexual harassment—instead either stating or indicating that such vicarious liability should not exist as a matter of law¹³⁶—and five more state high courts have not directly ruled on vicarious liability for sexual harassment but, in adjudicating other issues, have indicated strong resistance to such liability in the harassment context.¹³⁷ Seven state or territory high courts have reached internally inconsistent results,¹³⁸ and the remaining states’ high courts either have never adjudicated vicarious liability claims for sexual harassment or fall somewhere in between excluding the possibility of vicarious liability and consistently imposing such liability.¹³⁹

No position. There are seven state supreme courts that have never taken a position on vicarious liability for sexual harassment.¹⁴⁰ Of those seven, the Illinois and South Carolina Supreme Courts have indicated, while hearing cases in other contexts, that they would be resistant to extending vicarious liability for sexual harassment.¹⁴¹

No articulated test. The Hawai’i Supreme Court has adjudicated a sexual harassment vicarious liability claim but articulated no scope-of-employment test when it did so. Instead, where a therapist sexually abused his patient, the court swiftly held, with no explanation, that sexual harassment falls outside the scope of employment as a matter of law.¹⁴²

Motive to Serve. Of the remaining forty-two states and the District of Columbia, nineteen use a strict Motive to Serve test for sexual harassment cases.¹⁴³ Ten out of those nineteen consistently find, as a matter of law, that employers cannot be vicariously liable for sexual harassment and, indeed, have never found an employer vicariously liable for sexual harassment.¹⁴⁴ For example, in N.X. v. Cabrini Medical Center, the New York Court of Appeals stated in no uncertain terms that “[a] sexual assault perpetrated by a hospital employee is not in furtherance of hospital business and is a clear departure from the scope of employment, having been committed for wholly personal motives.”¹⁴⁵ Eight years later, the Second Circuit, while applying New York law, confirmed that “New York courts consistently have held that sexual misconduct . . . arise[s] from personal motives and do[es] not further an employer’s business . . . .”¹⁴⁶ Likewise, the Missouri Supreme Court has never imposed vicarious liability on an employer for sexual harassment: According to the court, neither a priest’s sexual assault of a parishioner nor a furniture-store employee’s sexual assault of a customer fell within the scope of employment because the respective perpetrators did not undertake the tortious conduct to further the purposes of their employers.¹⁴⁷ The court decided these cases seventy-two years apart, and yet, across time, Missouri has stayed steadfast in its position that sexual harassment can never lead to vicarious liability.

Courts in four more states out of the nineteen that use a strict Motive to Serve test have not gone so far as to hold that sexual harassment can never result in vicarious liability—but they have come close.¹⁴⁸ In Michigan, for instance, an employer can only be liable for sexual harassment if it “knew or should have known of the [perpetrator’s] propensities and criminal record” before the harassment occurred.¹⁴⁹ In Mississippi, when a lawsuit involving a counselor’s sexual assault of a camper reached the state supreme court on an unrelated issue, the court still took the time to say in several sentences of dicta that the sexual assault did not help the camp in any way and “only benefitted [the counselor’s] own desires.”¹⁵⁰

No single state that uses a strict Motive to Serve test has held that sexual harassment was within the scope of employment.¹⁵¹ Ohio and Florida have come the closest, however, to finding for plaintiffs. In Ohio, whether sexual harassment is within the perpetrator’s scope of employment is a jury determination.¹⁵² And the Florida Supreme Court, while adjudicating a non-sexual, physical assault case, relied on a Florida lower court’s holding that sexual assault occurred within the scope of employment because “[t]he purpose of the [tortfeasor’s] act, rather than the method of performance thereof, is said to be the important consideration.”¹⁵³ As the court suggested, of course sexual assault itself is never undertaken to help an employer; but, in the moments before an assault, a perpetrator is oftentimes carrying out employment duties that are, in fact, meant to serve the employer.¹⁵⁴ The Florida Supreme Court’s broader understanding of the Motive to Serve inquiry is more favorable to plaintiffs in sexual harassment cases than the narrower Motive to Serve approach that ends when a court determines an employee perpetuated sexual harassment for purely personal reasons. Despite its ingenuity, other courts have been unwilling to adopt Florida’s approach.¹⁵⁵

Enterprise Risk. The five states that use Enterprise Risk have come to diverse conclusions regarding vicarious liability.¹⁵⁶ Unlike under Motive to Serve, no state using Enterprise Risk has ruled out the possibility of vicarious liability as a matter of law.¹⁵⁷ Still, only Minnesota, which explicitly denounced the Motive to Serve approach,¹⁵⁸ uses Enterprise Risk and consistently extends vicarious liability.¹⁵⁹

But in other jurisdictions that use Enterprise Risk, results are mixed at best. Indiana has decisions all over the map: finding vicarious liability possible where a nurse’s aide sexually assaulted a fourteen-year-old, disabled patient;¹⁶⁰ denying summary judgment where a police officer sexually assaulted a civilian;¹⁶¹ and finding no employer liability where an employee hired the plaintiff and a few days after she started, confined her to a back room and then closed the door, blocked it with a chair, and sexually assaulted her.¹⁶² Nevada also has perplexing contradictions among its own decisions, even though a Nevada statute codified the Enterprise Risk test and the Nevada Supreme Court purports to apply it.¹⁶³ While the court held that a hotel employee’s sexual assault of a guest was reasonably foreseeable to the employer,¹⁶⁴ in another decision, it found that a grocery store employee’s sexual assault of a mentally disabled co-employee was not foreseeable and, thus, not within the scope of employment.¹⁶⁵

Further, in California, the state supreme court came to opposite conclusions in two cases of sexual harassment within the same profession: policing. In the first case, it held that a police officer’s sexual assault of a detainee was within the scope of employment because the risk of this occurring “was one that may fairly be regarded as typical of or broadly incidental to” policing.¹⁶⁶ Just four years later, when a deputy sheriff sexually harassed multiple other deputy sheriffs, the same court held that his misconduct fell outside the scope of employment.¹⁶⁷ The implication of this discrepancy is baffling: Was the court really suggesting that it’s entirely predictable that police officers will sexually abuse civilians, whom they are employed to protect, but not that the same individuals might harass their colleagues?¹⁶⁸

Other Tests. Six jurisdictions combine Motive to Serve and Enterprise Risk, either incorporating aspects of both into a hybrid test or requiring that plaintiffs satisfy the elements of both tests.¹⁶⁹ Results are mixed but still trend toward nonliability. The Louisiana Supreme Court uses court-created factors that imbue aspects of both the Motive to Serve and Enterprise Risk tests.¹⁷⁰ It has rejected “[a] blanket rule holding all sexual attacks outside the scope of employment.”¹⁷¹ Nonetheless, the court declined to impose vicarious liability for a nursing supervisor’s sexual assault of his subordinate.¹⁷² The District of Columbia uses a hybrid approach and, like Indiana, California, and Nevada, has reached internally inconsistent results.¹⁷³ And the South Dakota Supreme Court, which explicitly requires both that a perpetrator had a motive to serve his employer and that the sexual harassment was foreseeable, found a school district not liable where its employees sexually abused students.¹⁷⁴

A few outlier states have crafted novel tests. Oregon, for example, implemented a variation of the Motive to Serve premise, holding that a priest’s sexual assaults of a child “clearly were outside the scope of his employment” but that the “inquiry [did] not end there.” So, despite the priest not being motivated by a desire to serve the Archdiocese, his employer “still could be found vicariously liable, if acts that were within [the priest’s] scope of employment ‘resulted in the acts which led to injury to plaintiff.’ ”¹⁷⁵ Tennessee, meanwhile, crafted a test that applies only to quid pro quo harassment; the state supreme court has not adjudicated sexual harassment outside the quid pro quo context.¹⁷⁶ Comparing the use of such novel tests to others ultimately indicates that they give rise to vicarious liability at higher rates than any other approach.¹⁷⁷

Finally, six states have either directly imported the Second Restatement test or have used its exact language without directly attributing that language to the Restatement.¹⁷⁸ Three of these states have also adopted the Restatement’s scope-of-employment exceptions, discussed in the next section, which make vicarious liability findings easier. Utah, though, uses identical language to the Third Restatement for its scope-of-employment test but has not adopted the aided-in-accomplishing exception and, thus, almost always finds employers not liable.¹⁷⁹

b. Outside the Scope of Employment

Six state supreme courts have expressly adopted the aided-in-accomplishing exception, which endorses vicarious liability when a perpetrator “was aided in accomplishing the tort by the existence of the agency relation.”¹⁸⁰ But all six states have imposed limitations on the exception.¹⁸¹ For instance, while Vermont seemed to adopt the exception as a blanket rule in Doe v. Forrest, where a police officer sexually assaulted a civilian,¹⁸² just three years later, the state supreme court decided not to apply the exception to sexual abuse by a pastor against parishioners.¹⁸³ The court justified its decision by finding that police officers have more power in society than do pastors.¹⁸⁴ Beyond its subjectivity, this judgment also deviates from the Second Restatement’s approach, which does not differentiate liability based on perceived power.¹⁸⁵ Alaska also limits the exception. When a caregiver repeatedly sexually assaulted a resident in an assisted living facility, the Alaska Supreme Court adopted the exception and remanded the case for the jury to determine vicarious liability in light of it.¹⁸⁶ However, it noted that the exception was limited to cases either arising from supervisor harassment or involving a perpetrator that has substantial “authority to control important elements of a vulnerable tort victim’s life or livelihood.”¹⁸⁷

Overall, courts adjudicating these tort claims regarding sexual harassment rarely impose vicarious liability on the perpetrator’s employer. But beyond being overwhelmingly favorable to employers, outcomes are also inconsistent, unpredictable, and at times completely perplexing. Ultimately, survivors living in different jurisdictions could experience the exact same kind of abuse by the exact same kind of perpetrator yet experience vastly different judgments.

3. The American Law Institute’s Recent Focus on Sexual Harassment

The American Law Institute (ALI) is currently updating its Restatement of Torts and, for the first time, is specifically focusing on how vicarious liability and sexual harassment should intersect. In a publicly available draft, after the scope-of-employment provision, the Restatement comments discuss both the ALI’s preferred scope-of-employment test and how courts should employ this test in sexual harassment cases.¹⁸⁸ The draft recommends that courts find employers liable only when sexual harassment occurs within the scope of employment.¹⁸⁹ But, the draft also directs courts to evaluate sexual harassment “on a case-by-case basis and not pursuant to a per se rule”¹⁹⁰—thus critiquing the many jurisdictions that refuse to hold employers liable as a matter of law.¹⁹¹ It is unclear how much this draft will change before ALI members vote on it, but one thing is certain: The ALI has a new interest in vicarious liability for sexual harassment.

II. Justifications for Expanding Vicarious Liability

The vicarious liability regimes are demonstrably flawed, but critics of employer liability may argue in favor of alternative responses to sexual harassment. This Part argues that expansion of vicarious liability in both tort and civil rights law is the right approach.

A. The Underlying Reasons for Vicarious Liability

The expansion of vicarious liability for workplace sexual harassment is justified by the reasons vicarious liability exists in the first place. Vicarious liability has long been “firmly embedded” in American jurisprudence.¹⁹² While, throughout history, there have existed wide-ranging explanations for vicarious liability,¹⁹³ this Section focuses on three of its modern justifications: prevention,¹⁹⁴ compensation,¹⁹⁵ and just cost allocation.¹⁹⁶ Scholars and courts often invoke all three of these justifications at once,¹⁹⁷ but some have emphasized one over others. Richard A. Posner and William M. Landes, for instance, have stressed the prevention rationale,¹⁹⁸ while W. Page Keeton and William Lloyd Prosser’s work contends that the principal justification for vicarious liability is cost allocation.¹⁹⁹

The three justifications for vicarious liability apply with equal force in the sexual harassment context as to any other vicarious liability claim. The U.S. Supreme Court has declared that the “central statutory purposes” of Title VII are prevention of future discrimination and compensation for victims, mirroring two of the three vicarious liability justifications.²⁰⁰ Plus, Title VII’s scheme is one of cost allocation: Employers, not individuals, can be held liable under Title VII,²⁰¹ thus directly bearing the cost of Title VII violations. The Faragher Court also mentioned the cost allocation justification specifically, acknowledging that “one might justify the assignment of the burden of the untoward behavior to the employer as one of the costs of doing business . . . .”²⁰² Nevertheless, in its next breath, the Court gave employers an affirmative defense.²⁰³

The justifications are also applicable to sexual harassment claims in tort. In adjudicating a sexual assault of a detainee by a police officer, the California Supreme Court invoked the three modern purposes of vicarious liability as support for its decision to impose vicarious liability. It held the police department liable because “the imposition [of liability] on public entities whose law enforcement officers commit sexual assaults while on duty . . . encourage[s] the employers to take preventive measures” (prevention); “vicarious liability is an appropriate method to ensure that victims of police misconduct are compensated” (compensation); and “society has granted police officers extraordinary power” such that “the cost resulting from misuse of that power should be borne by the community” (cost allocation).²⁰⁴

Even where the abuse of power is not so obvious as with a sexual assault by an on-duty police officer,²⁰⁵ prevention, compensation, and cost allocation should still be driving tenets of case outcomes. First, prevention is an obvious goal of the anti-sexual harassment movement: Sexual harassment remains pervasive²⁰⁶ and will not go away unless and until future violence is prevented. Compensation is imperative because of the physical, emotional, and financial impacts of sexual harassment. For instance, a study by the American Association of University Women found that sexual harassment causes depression and post-traumatic stress, economic insecurity, and disrupted career advancement.²⁰⁷

Post-#MeToo, the theory of just cost allocation strongly supports vicarious liability. Workplace sexual harassment occurs not only because of individual perpetrators’ actions but also because of the systems that enable that conduct. Diane Byun argues that “the organizational climate” of an employer impacts both the perpetuation and prevention of sexual harassment.²⁰⁸ In fact, several features of the workplace—including employer attitudes, workplace demographics, and institutional cultures—contribute to engendering sexual harassment.²⁰⁹ For instance, sexual harassment is most likely to occur in workplaces that are majority-male, across hierarchal levels,²¹⁰ and in organizations that are tolerant of harassment.²¹¹ Tolerance can look like an organization ignoring complaints or refusing to impose meaningful sanctions.²¹² But social norms also engender harassment; for instance, when other employees, especially supervisors, knowingly overlook harassment.²¹³ Although discussion of this engenderment already existed prior to the #MeToo movement,²¹⁴ #MeToo exponentially spread awareness about the systemic nature of sexual harassment.²¹⁵ Now, given the proof that sexual harassment is a result of workplace dynamics, it is undeniable that sexual harassment is a cost of doing business. And employers have been put on notice that this is the case: They are now aware of the significant risk that sexual harassment will occur in their workplaces and the reasons it so frequently does occur. So, they should bear the costs of that risk.

Although the aims of vicarious liability apply to sexual harassment, the existing standards do not achieve those aims. First, vicarious liability does not, currently, spur worthwhile prevention efforts. As discussed above,²¹⁶ harassment policies are often nominal, rather than effective.²¹⁷ Even after #MeToo, many major employers refuse to change their approaches.²¹⁸ One survey asked Walmart, Target, Sears, Subway, and Costco if they had improved their reporting systems in response to #MeToo. Instead of answering in the affirmative, they all “simply expressed commitment to their existing internal systems”²¹⁹—the same systems that, in federal court, aren’t examined for effectiveness and are, instead, treated as dispositive in the affirmative defense analysis.

Victims are also infrequently sufficiently compensated. Plaintiffs rarely prevail on their vicarious liability claims²²⁰ and receive no compensation when they lose. Even when they win, Title VII caps compensation amounts,²²¹ so if a prevailing party wins under Title VII but not in tort, the amount she receives may not adequately redress her injury.

And finally, although vicarious liability understands that employers are “better able [than individual employees] to absorb costs and to distribute them,”²²² the narrow scope of employer liability in the sexual harassment realm works against the cost-allocation goal, too.

B. Employer Civil Liability Compared to Alternative Systems of Justice

Employers hoping to avoid liability may contend that individual perpetrators should be the ones on the hook for sexual harassment. This Section explains why expanding employer liability is a better solution than investing in criminal or personal civil liability.²²³

1. Criminal Liability

In cases of sexual misconduct, the first intervention that comes to mind, for many, is the criminal legal system. But relying on criminalization is misguided for several reasons. First, many forms of violence housed under the umbrella category of sexual harassment, including stalking and verbal harassment, are not criminalized.²²⁴ Second, very few sexual assaults that are criminally cognizable result in criminal convictions.²²⁵ Third, the criminal legal system, even when perpetrators are convicted, is still a counterintuitive response to sexual violence. In many cases, criminal charges do not actually meet survivors’ needs or desires.²²⁶ Activist Mariame Kaba wrote in her introduction to “Open Letter to the Anti-Rape Movement” that she frequently speaks to survivors that “do not want to involve the police” after they experience sexual violence.²²⁷ And it’s easy to understand why—the criminal legal system “has very little to do with victims, and everything to do with the state.”²²⁸ Whether to prosecute is a decision that is not in the hands of victims themselves. Even if a perpetrator is convicted, victims receive no compensation despite having often left their jobs where the harassment occurred and having undergone years of emotional labor and retraumatization during criminal proceedings.²²⁹

Moreover, prisons perpetuate violence rather than reduce it. In 2011, almost 200,000 people living in American detention facilities experienced sexual abuse, most of which was perpetrated by facility employees.²³⁰ In comparison, that same year, there were 11,364 workplace sexual harassment charges filed with the EEOC.²³¹ Workplace sexual harassment, then, occurs at an even higher rate in prison, where employees perpetrate harassment against nonemployees, just as they do in other settings. For example, the authority that a corrections officer has over a prisoner is just as, or even more commanding than, that which a police officer has over a civilian; just as police officers sexually harass civilians, so, too, do corrections officers sexually harm incarcerated individuals.²³² It makes sense, then, that anti-sexual-violence activists have begun to question the carceral system as a solution.²³³

2. Personal Civil Liability

Another pathway to justice is individual liability against perpetrators themselves, rather than against their employers. However, most circuits agree that Title VII does not give rise to personal liability.²³⁴ And even if survivors pursue tort claims against their harassers, they face the very real possibility that their perpetrators are unable to pay the damages of the judgment levied against them, and thus are judgment-proof.²³⁵

The risk of individual defendants being judgment proof is especially heightened in the context of low-paying industries, where sexual harassment is most pervasive. One-quarter of EEOC sexual harassment charges arise from the service industry, where positions are usually low-paid and occupied by women.²³⁶ In fact, 71 percent of women employed by restaurants have been sexually harassed at work at least once, a far higher percentage than in any other industry with comparable data.²³⁷ When asked about their perpetrators, 45 percent of all restaurant workers reported having been sexually harassed by coworkers, while 44 percent had experienced sexual harassment by managers, supervisors, or owners.²³⁸ Essentially, if survivors choose to file personal suits, a large number will encounter judgment-proof defendants because their harassers are oftentimes working the same low-paying jobs as they are.

C. Sexual Harassment’s Exceptionalism

Scholars have pointed out that vicarious liability regimes “exceptionalize” sexual harassment, imposing stringent standards for recovery that do not exist in other contexts. In her groundbreaking law review article on sexual harassment–vicarious liability in tort law, Professor Martha Chamallas argues that “[m]any courts continue to treat sexual abuse cases as exceptional,” refusing to hold employers vicariously liable for sexual harassment even though they routinely do so for nonsexual intentional torts.²³⁹ To illustrate her point, she reflects on two foundational cases in which drunken sailors engaged in intentionally destructive behavior and the courts found the seamen’s employers liable.²⁴⁰ Based on these examples and others, Professor Chamallas argues that “courts are often able to see a connection between employment and violent acts by employees—even rare criminal acts—provided that they are not sexual in nature.”²⁴¹

In 2021, Professor Keith Cunningham-Parmeter advanced a similar argument in the Title VII context, contending that sexual harassment is exceptionalized compared to other violations of the statute.²⁴² Every other type of Title VII violation—including all other forms of sex discrimination, race discrimination, national-origin discrimination, and religious discrimination, as well as retaliation—gives rise to strict liability. For these other violations, all a plaintiff must prove to secure vicarious liability is that the misconduct occurred.²⁴³

As Professors Chamallas and Cunningham-Parmeter point out, both regimes exceptionalize sexual harassment. There is no justifiable reason for employers to be on the hook for all other Title VII violations and tortious acts while they avoid liability and, thus, accountability for sexual harassment. The only conceivable reason that the system exists as it does is that it embraces antiquated views of sexual violence as falling in the private sphere or not being rooted in systemic discrimination.²⁴⁴ But #MeToo, and the feminist movements that came before it, have finally debunked these views—and any other that purports that sexual violence is somehow different from other violent and discriminatory acts; the law, then, should reflect what society has begun to understand.

III. A New Proposal: Universal Adoption of the “Aided-in-Accomplishing” Exception

Scholars have suggested various reforms to vicarious liability. In this Part, I delineate some potential solutions and then put forward my own: a universal standard that would hold employers vicariously liable, both under Title VII and in tort, whenever individuals are aided in perpetrating sexual harassment by their employment positions.

A. Already-Proposed Solutions

1. Title VII

Under Title VII, the options for reform range from incremental to systemic. As to the former category, scholars have proposed overturning Vance and expanding its definition of “supervisor.”²⁴⁵ Another minimally intrusive option would be for courts to change their analyses of whether employers have proven the Faragher affirmative defense, as the Third Circuit did when it reconsidered whether failing to formally internally report was reasonable.²⁴⁶ But both of these changes would still leave significant gaps; the existence of the affirmative defense would still allow employers to circumvent liability,²⁴⁷ and a broadened definition of supervisor would still leave out the many victims who are sexually harassed by co-employees.²⁴⁸

A more systemic reform would be to eliminate the Faragher affirmative defense altogether.²⁴⁹ This is what New York City did for its local equivalent to Title VII.²⁵⁰ Meanwhile, Professor Cunningham-Parmeter advocates for the most extreme solution under Title VII: holding employers strictly liable whenever a plaintiff proves that they experienced actionable sexual harassment.²⁵¹

Most of the existing Title VII proposals address some, but not all, of the issues it currently poses. For instance, even if the Court overturned Vance, Faragher’s affirmative defense would still shield most employers. Professor Cunningham-Parmeter’s strict-liability approach would alleviate most concerns with Title VII. But his proposal has no common law foundation and would thus be incompatible with the tort system. Harmony between Title VII and tort law should be the goal because it would allow survivors to pursue two claims concurrently, which would, in turn, streamline evidence collection and claim development and let survivors pursue the most extreme remedy available.²⁵² In addition, Professor Cunningham-Parmeter’s proposal would undoubtedly face backlash from employers, who would argue that they cannot feasibly pay for every single instance of workplace sexual harassment, of which there are many.

2. Tort

As with Title VII, scholars have suggested various reforms for how the tort system ought to deal with vicarious liability in the sexual harassment context. Professor Paula Dalley advocates for reconceptualizing what falls within the scope of employment under the Motive to Serve test. But doing so is not actually feasible for plaintiffs. Professor Dalley argues that “plaintiffs and employers should be permitted to introduce evidence indicating the actuating force for the harassment” because a “harasser may misguidedly believe that his acts will advance the employer’s interests by driving out female employees who are perceived to be incompetent or disruptive.”²⁵³ There are two issues with forcing survivors to rely on such an argument: First, it seems very unlikely that perpetrators are actually perpetrating violence with the conscious intention of driving out female employees, and, second, even if they are, how could a survivor possibly prove that? In the end, the degree to which Professor Dalley needs to stretch facts to leverage the Motive to Serve test in survivors’ favor merely reinforces that its use is improper for sexual harassment cases. Her proposal would also be discordant with the Title VII standard, which requires no inquiry into scope of employment.

Professor Chamallas, on the other hand, rejects the “ill-suited” Motive to Serve test and puts forward a rule that would be applicable only to sexual harassment cases.²⁵⁴ She recommends vicarious liability where “an employer materially increases the risk of tortious action either by conferring power or authority on its employees over vulnerable persons or by regularly placing its employees in situations of intimate or personal contact with clients, customers, or other potential victims.”²⁵⁵ Though strongly worded and widely encompassing, Professor Chamallas’s proposal falls outside of the existing common law structure for vicarious liability; it neither reconceptualizes a scope-of-employment test nor utilizes an existing exception to scope of employment. Instead, it imagines a world in which a Restatement provision or court standard applies only to sexual harassment cases. Thus, such a rule would continue to exceptionalize sexual harassment (albeit this time in favor of survivors), while also relying on individual courts to adopt the rule despite its lack of common law underpinnings.

For these reasons, my proposed standard is rooted in the Restatements of Agency, does not rely on any scope-of-employment test, and harmonizes Title VII and tort law.

B. Universal Application of the “Aided-in-Accomplishing” Exception

I propose that courts universally adopt the Second Restatement’s aided-in-accomplishing exception when considering sexual harassment claims both under Title VII and in tort.²⁵⁶ There is scholarly support for using this exception to inform vicarious liability regimes,²⁵⁷ but the current literature has not advocated for a direct import of the exception to all Title VII and tort claims of sexual harassment.

Universal adoption would mean that, for both Title VII and tort claims, plaintiffs would need only show that (1) a defendant-employer’s employee perpetrated actionable sexual harassment against them; and (2) that the perpetrator was aided in perpetrating that harassment by the existence of their employment relationship with the employer. Should the plaintiff make an adequate showing on both elements, they would prevail, and the employer-defendant would be strictly liable for the perpetrator’s conduct.

There are several benefits to this standard. At a basic level, adopting the same standard for both civil rights and tort systems would empower sexual harassment victims to pursue multiple claims against their employers concurrently, without having to meet two different thresholds for vicarious liability, as they do now.²⁵⁸

Under Title VII, the standard removes the Faragher affirmative defense and the need for a determination of supervisory status, thus circumventing Vance issues. According to this new standard, harassment by an employee at any level could give rise to strict liability for an employer.

For tort claims, states can adopt the proposed standard without sacrificing their chosen scope-of-employment test. The aided-in-accomplishing exception also makes more inherent sense when applied to sexual harassment claims than does either major scope-of-employment test. The Motive to Serve test so infrequently gives rise to vicarious liability for sexual harassment cases that its application seems practically meaningless.²⁵⁹ Courts that use Motive to Serve for sexual harassment cases are either nominally running through a vicarious liability analysis or attempting to fit a square peg into a round hole by applying a scope-of-employment test that will really never reconcile with the facts at issue in a sexual harassment case. Enterprise Risk is also counterintuitive for sexual harassment cases; it hinges liability on foreseeability, meaning that more sexual harassment in a workplace gives way to more vicarious liability.²⁶⁰ Conversely, then, a decrease in sexual harassment would weaken the case for vicarious liability under Enterprise Risk, since it would not be as foreseeable. The aided-in-accomplishing exception, on the other hand, does not depend on foreseeability or frequency. It’s a more individualized approach that asks: Did this specific employment position aid this specific tortfeasor in his perpetration? Finally, in tort, multiple states have already explicitly adopted this standard,²⁶¹ giving courts models to emulate.

Substantively, the standard would significantly expand vicarious liability, which this Note has shown is necessary. For instance, employers would now be vicariously liable for the misconduct of employees who are supervisors in practice but do not have tangible-employment-action power.²⁶² Employers could even be liable for sexual harassment by co-employees that are aided in perpetrating sexual harassment by their positions. For instance, imagine an employment setting in which employees use locker rooms to change and rest, such as hospitals or police stations. A co-employee could gain access to one of those locker rooms and sexually assault their colleague by virtue of that colleague being in a physically exposed setting. The employee-perpetrator would have certainly been aided in accomplishing the sexual assault by their position as an employee with access to that locker room. And thus, the co-employee victim could argue, under the proposed standard, that the employer should be vicariously liable.

Further, the EEOC and ALI should provide clarity on the types of incidents that fall under the aided-in-accomplishing exception. I propose that such guidance focus on characteristics of perpetrators and victims that, if present, presumptively give rise to vicarious liability.

Perpetrators. The new standard would give rise to a category of employees whose sexual harassment would almost always result in vicarious liability. These are employees whose very positions afford them with enough power such that, if they ever perpetrate sexual harassment while at work, their employment relationship will have undoubtedly aided them in doing so. These perpetrators all possess three commonalities: perceived power, actual authority, or unique access to victims. Under the proposed standard, if a perpetrator possesses at least one of these commonalities, there would be a presumption that their employment position did, in fact, aid them in accomplishing the harassment.

Consider a law enforcement officer. Police officers have perceived power, by virtue of their uniforms, badges, firearms, and positions in society, all of which put individuals that interact with them in an automatically subservient position.²⁶³ They also have actual authority, possessing the ability to detain, search, question, and arrest civilians, within constitutional bounds.²⁶⁴ Finally, they have unique access to personal information about individuals that, in some cases, enables harassment. On Our Watch, a National Public Radio podcast, examined sexual harassment by California Highway Patrol officers.²⁶⁵ Each of the three perpetrator characteristics appears in the podcast’s sexual harassment narratives.²⁶⁶ For instance, the episode reported that one perpetrator who was responsible for conducting vehicle inspection appointments sexually harassed at least twenty-one civilian customers.²⁶⁷ He leaned on his apparent and actual authority by promising the victims that he would pass their inspections if they went on a date with him or had sex with him.²⁶⁸ Two of those survivors shared that, after propositioning them during the inspections, the officer got their phone numbers from the police database, thereby leaning on the access characteristic, and proceeded to solicit sex from them via text.²⁶⁹ Under the current Title VII standard and in many jurisdictions’ tort regimes, the California Highway Patrol would not be vicariously liable for this repeated harassment. But under the proposed standard, especially with the help of future EEOC and ALI guidance, it would be.

Other employees have similar characteristics that enable harassment. These positions include hotel employees (with access to guests’ rooms while they are sleeping), medical personnel (with authority and access to patients in vulnerable states), teachers and professors (with authority over and access to students), and clergy members (with authority over parishioners), among others. If these employees commit harassment while at work, their misconduct should presumptively fall within the aided-in-accomplishing exception.

There is an additional benefit to having guidance on these characteristics of perpetrators: Employers in their industries would be on notice of the unique societal positions their employees occupy, and in turn, the increased ability their employees possess to sexually harass.

Victims. There is also a characteristic of victims whose cases should presumptively fall under the aided-in-accomplishing standard: vulnerability. In many cases where plaintiffs sue employers for sexual harassment but fail to recover, those plaintiffs were in particularly vulnerable positions that their perpetrators took advantage of. In the first case this Note discussed, Zsigo v. Hurley Medical Center, Ms. Zsigo was experiencing a depressive episode and was constrained to her hospital bed when the nursing assistant sexually assaulted her.²⁷⁰ It was not only the nursing assistant’s position of power, but also the fact that she was in a medically vulnerable state, that created the conditions conducive to the perpetrator abusing his power and assaulting Ms. Zsigo. The same can be said for many other sexual harassment survivors. For example, in adjudicating a sexual assault case, the North Dakota Supreme Court specifically acknowledged the vulnerability of therapy and counseling patients, noting “the emotional fragility for which treatment may have been sought,” which, in turn, “permits the exploitation of the vulnerability that may be present during the course of treatment.”²⁷¹ Vulnerability exists for many reasons—including age, physical size, restrained position, medical condition, and disabled status—and should, in all of its forms, be taken into consideration.

Even without guidance identifying circumstances that presumptively lead to employer liability, the aided-in-accomplishing standard, applied on a case-by-case basis, would still lead to liability in many of the circumstances just discussed. Even so, having a category of employees and victims that all courts presumptively treat the same would be helpful, both for efficacy and for preventing fringe courts from applying their own aided-in-accomplishing analyses in an overly employer-friendly way.

For the wary employer, this proposed standard strikes a balance between courts imposing automatic liability and employers dodging accountability. The standard significantly expands vicarious liability, as is necessary, but by no means stretches it to apply in all circumstances.²⁷²

My proposed standard would finally and accurately reflect the realities of workplace sexual harassment for victims. Workplaces engender sexual harassment, and employers possess the power to both prevent future misconduct from occurring and compensate victims when misconduct does occur. The legal system should acknowledge and integrate that reality, as my proposed standard does.

Conclusion

There is no one right solution to workplace sexual harassment—the issue is so pervasive that nothing less than a multi-faceted approach is likely to solve it. But this Note makes the case for a legal solution that could make a real difference: Expanding vicarious liability for sexual harassment claims under Title VII and in tort. Almost a decade after #MeToo, employers have no excuse for failing to prevent and address the sexual harassment that occurs, pervasively and chronically, in their workplaces. A social movement has put employers on notice, and now the legal system must intervene, too.

* J.D., May 2024, University of Michigan Law School. I am grateful to every mentor who has shaped my lifelong devotion to addressing sexual harassment and especially to Roseanna Sommers, for her supervision, as well as Catharine A. MacKinnon, Jennifer B. Salvatore, Zachary D. Fasman, and Kyle D. Logue, for teaching me the law. I feel lucky to be building on Martha Chamallas’s foundation; she and Mike Green, another expert in this area, generously shared their time and thoughts with me. The Vol. 122 Notes Office—Hannah Cohen Smith, Ashley Munger, Katie Osborn, Eddie Plaut, and Jordan Schuler—made me better, and the Vol. 123 Notes Office—Alex Izbiky, Kavitha Babu, Salvatore Guido, Jeesae Kim, Lulu Qian, and Sara Shapiro—made this Note better. Libby Munoz-Smith, Hannah Cohen Smith, and every MLR editor who worked on this piece contributed thoughtful edits. All errors are my own. Thank you finally to my dad, John Fotiadis, for encouraging me to follow my own path; my mom, Anastasia Rubis, for showing me how to write and read and dream; and my heart, Mike Sickles, for keeping me grounded and unfailingly believing in me.

Appendix A

Fotiadis – Appendix Download