Read case 11.4: consenting to sexual harassment, located here or on
did not automatically rule out harassment. He argued that this position would have the result of depriving the accused per- son of any defense, because he could no longer establish that the supposed victim was really “a willing participant.” Judge Bork contended further that an employer should not be held vicariously liable for a supervisor’s acts that it didn’t know about.
Eventually the case arrived at the U.S. Supreme Court, which upheld the majority verdict of the Court of Appeals, stat- ing that:
[T]he fact that sex-related conduct was “voluntary,” in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were “unwelcome.”. . . The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participa- tion in sexual intercourse was voluntary.
The Court, however, rejected the Court of Appeals’s position that employers are strictly liable for the acts of their supervisors, regardless of the particular circumstances.72