Balancing employee rights and responsibilities in sexual harassment cases following Faragher and Ellerth: An employer's perspective

In 1998, the United States Supreme Court issued hvo opinions that delicately balanced the responsibilities of employers and employees in fulfilling Title VII's goal of eliminating discrimination in the workplace. Those two opinions-Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth-require employers to implement measures to prevent harm to their employees, but also require employees to take advantage of those measures to avoid harm. Numerous articles have evaluated the responsibilities of the employer tinder Faragher and Ellerth. But little, if any, emphasis has been placed on the responsibilities of the employee. This article evaluates the role of the employee in avoiding harm and, analyzing recent decisions from the Second and Third Circuits, argues that the employee's responsibilities should play an integral part in evaluating sexual harassment liability. © 2004 Springer Science+Business Media, Inc.