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2257 (1998) provided guidelines for answering this question where the sexual harassment is committed by an employees immediate supervisor or one who is successively higher in the chain of command.Under prior authority employers have been found to be absolutely liable for this type of conduct by a supervisor even where the employer had no reason to be aware of it.Neither did the Supreme Court attenuate the defenses based on an employees failure to mitigate damages.Nor did the Court lower the burden of proof of employees to recover compensatory or punitive damages.It does not avail the employer that it properly selected and supervised the offender and that the abusive acts were not committed in the scope and course of employment.Under the employer can prevail where a hostile environment based on sexual harassment is shown to exist only if it fulfills the conditions of an affirmative defense set out by the Supreme Court. Thus the Court expanded the liability of an employer for a supervisors hostile environment sexual harassment, but it fell short of imposing per se liability by allowing the affirmative defense.

The cases seem to have made no changes in the law where the harassment is perpetrated by the employees peers or by a supervisor who is obviously not in a position to exercise authority over the plaintiff.

Additionally, where a plaintiff claims constructive discharge her burden of proving that claim remains unchanged. 1999) alleged that her immediate supervisor subjected daily to unwelcome sexual banter and advances, but she did not lodge a complaint until approximately a month after he allegedly raped her.

There are some instances where resort to the Faragher/Ellerth affirmative defenses may not save an employer from liability from a claim of sexual harassment. The court ruled that it could not determine as a matter of law that her failure to invoke the employers complaint procedure prior to the rape shielded the employer from liability from that act.

an employer could no longer rely on the absence of these circumstances to defend a hostile environment sexual harassment claim based on the actions of a supervisor or manager.

The employer is now answerable even where it has no actual or constructive knowledge of the harassing conduct.

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