Brigham Young University Prelaw Review


workplace discrimination, Ellerth, Faragher, Title VII, affirmative defense, vicarious liability


This article addresses the growing problem of workplace discrimination. Even though a few states have implemented laws requiring employers to train their employees on workplace discrimination, the number of discrimination claims has continued to rise each year. In 1998 the Supreme Court ruled on two important cases regarding workplace discrimination. Their opinion on these cases established what is known as the Ellerth/Faragher defense. The Ellerth/Faragher defense sets standards that an employer must meet to claim affirmative defense in cases of illegal discrimination. This article argues that the current standards set in this defense are flawed and need to be updated. It holds that the Ellerth/Faragher defense gives employers an easy way out because the requirements for claiming affirmative defense are not specific enough. It then proposes a law that requires employers hold trainings, have grievance procedures, and conduct disciplinary actions before the employer can claim affirmative defense and avoid vicarious liability for the employee discrimination. Together these three requirements would help to reduce workplace discrimination and make the workplace safe for every employee.