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The Supreme Court Says You’re Crazy

Posted by Frank Steinberg | Oct 09, 2008 | 0 Comments

If you own or run a business, they really do think you're crazy.  If, that is, you don't have an effective sexual harassment policy to protect you from respondeat superior liability. 

Coincidentally, we blogged on this subject on October 3 in the context of the NJ Appellate Division's opinion in Cerdeira v. Martindale-Hubbell.

Here's a snippet of the transcript of yesterday's oral argument in Crawford v. Metropolitan Government of Nashville.  We've edited it a bit and highlighted for emphasis.

JUSTICE GINSBURG: And how about taking our decisions in the Faragher and Ellerth case which in a sense made the employer's internal investigation part of the EEO process because it says to the employer, if you don't have that kind of effective internal complaint and investigation procedure, then you're going to be stuck on respondeat superior liability. If you do, then you will be shielded.  So this Court's decision in those two cases seemed to me to say to every employer, as part of your EEO compliance you had better have this internal complaint procedure and investigation.

MR. YOUNG: I agree. . . . However, such a policy and such a mechanism is not made mandatory by Faragher and Ellerth.

JUSTICE SOUTER: Well, you say it's not made mandatory. Any employer who doesn't go through it is crazy.

So there you have it.  Free legal advice straight from the top.  ‘Nuf said?

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...


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