800
Opinion of the Court
propriate corrective action"); 3 L. Larson & A. Larson, Employment Discrimination § 46.07[4][a], p. 46-101 (2d ed. 1998) (courts "uniformly" apply Equal Employment Opportunity Commission (EEOC) rule; "[i]t is not a controversial area"). If, indeed, the cases did not rest, at least implicitly, on the notion that such harassment falls outside the scope of employment, their liability issues would have turned simply on the application of the scope-of-employment rule. Cf. Hunter v. Allis-Chalmers, Inc., 797 F. 2d 1417, 1422 (CA7 1986) (noting that employer will not usually be liable under respondeat superior for employee's racial harassment because it "would be the rare case where racial harassment . . . could be thought by the author of the harassment to help the employ-er's business").
It is quite unlikely that these cases would escape efforts to render them obsolete if we were to hold that supervisors who engage in discriminatory harassment are necessarily acting within the scope of their employment. The rationale for placing harassment within the scope of supervisory authority would be the fairness of requiring the employer to bear the burden of foreseeable social behavior, and the same rationale would apply when the behavior was that of co-employees. The employer generally benefits just as obviously from the work of common employees as from the work of supervisors; they simply have different jobs to do, all aimed at the success of the enterprise. As between an innocent employer and an innocent employee, if we use scope-of-employment reasoning to require the employer to bear the cost of an actionably hostile workplace created by one class of employees (i. e., supervisors), it could appear just as appropriate to do the same when the environment was created by another class (i. e., co-workers).
The answer to this argument might well be to point out that the scope of supervisory employment may be treated separately by recognizing that supervisors have special authority enhancing their capacity to harass, and that the
Page: Index Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 NextLast modified: October 4, 2007