In 1998, the Supreme Court established a standard for employer vicarious liability for sexual harassment in the cases Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. Together, these cases hold that an employer is presumptively liable for any actionable sexual harassment by a supervisor. No affirmative defense is available when harassment results in tangible employment action; however, when harassment does not result in tangible employment action, an employer may raise an affirmative defense to liability and damages. Rather than attempting to settle the debates over whether the Faragher-Ellerth affirmative defense is good public policy, this Note advances a distinct, novel, and more fundamental critique of the Faragher-Ellerth regime: that the affirmative defense is problematic because it privatizes the adjudication of a civil right. Although the affirmative defense is pled in court, its effect is to make employers’ training and reporting systems outcome-determinative, thereby deferring to employers’ regulation of sexual harassment. This Note argues that, by shifting the enforcement of anti-sexual harassment principles from legal proceedings to corporate self-regulation, the Faragher-Ellerth regime ignores the essential nature of the harm of sexual harassment: the violation of the victim’s civil rights and public claim to equal citizenship. Privatization of sexual harassment adjudication, then, is fundamentally incompatible with the underlying antidiscrimination principles foundational to sexual harassment jurisprudence.

* Director, Stanford Constitutional Law Center; J.D., Stanford Law School, 2024; Ph.D. Candidate, Stanford Program in Modern Thought & Literature. I am indebted to Bernadette Meyler and Mark Kelman for their generous comments spanning three drafts of this project. Thanks also to Ticien Sassoubre and Norman Spaulding for their thoughtful feedback which pushed this Note across the finish line; to Jacqueline Lewittes for her characteristically brilliant observations and her encouragement; to Jacob Abolafia, my steadfast interlocutor, who invariably sharpened my thinking at every stage; and to the editors of the Stanford Law Review for their extraordinary attention to the piece.