William & Mary Bill of Rights Journal


In this Essay, Professor White argues that the Supreme Court finally has merged analysis of sexual harassment law with other claims of intentional discrimination. Professor White contends that the Court's decision in Meritor Savings Bank, FSB v. Vinson created confusion over the proper analysis of sexual harassment claims by seemingly embracing quid pro quo and hostile work environment theories as distinct forms of discrimination and by suggesting that at least some sexual harassment claims may warrant a revised approach to employer liability. In the wake of Meritor, sexual harassment claims increasingly were evaluated differently from other claims of disparate treatment, both in determining whether harassment was because of sex and in determining employer liability for the harassment. Last term's decisions are aimed at ending that distinctive treatment, placing sexual harassment claims firmly in the mainstream of disparate treatment theory. Oncale v. Sundowner Offshore Services, Inc. teaches that unlawful motive in sexual harassment claims is to be evaluated on the same terms as other disparate treatment claims. Burlington Industries, Inc. v. Ellerth, and Faragher v. City of Boca Raton, while recognizing and clarifying vicarious employer liability principles for sexual harassment, also should be understood to govern employer liability for all disparate treatment occurring at the hands of supervisors, whether or not sexual harassment is involved. Professor White accordingly contends that the Court's decisions from last Term have clarified both sexual harassment in particular and disparate treatment law generally