Brooklyn Law Review


The incredible force of the #MeToo movement has created momentum for long-overdue reform of workplace sexual harassment laws. One problematic element of the sexual harassment scheme is the Faragher/Ellerth defense, a defense to a claim of hostile work environment under Title VII. The Faragher/Ellerth defense allows an employer to escape liability for actionable sexual harassment if it can show that it had a policy against harassment with a procedure for making complaints, but the victim of harassment did not complain using that procedure. But the vast majority of victims of sexual harassment never make a formal complaint to their employer because they fear losing their jobs, feel shame about the harassment, or just do not believe reporting the problem will do anything to fix it. The Faragher/Ellerth defense thus rewards employers for merely having policies on the books that do not do anything to actually prevent workplace harassment, and penalizes victims who have not responded to their harassment by acting in narrowly proscribed ways. To better protect and compensate victims of sexual harassment, Congress must eliminate or reform the Faragher/Ellerth defense.