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Abstract

This Article proposes that courts change the way in which they adjudicate Title VII disputes by evaluating the harm avoidance demonstrated by plaintiffs and employers in light of the totality of what each party knew or should have known about the potential harm, and what each party did or could have done to prevent it. Specifically, this Article is premised on the ideas that 1) harassment complaints are, typically, initially dealt with internally; often, an employer will remediate reported harassment by ordering or granting a transfer to separate a harasser and his victim; and 2) many harassers are, in fact recidivists...The premise of this Article, then, is straightforward. Because so many harassers are recidivists, and because of the fact that so many employers are able, under the current state of the law, to fulfill their obligation to remediate reported harassment by simply separating the victim and her harasser, many employees will fall victim to known harassers. Moreover, because of the way in which courts have applied the affirmative defense, the employer, having never received a complaint from that victim, will typically evade liability for any “new” act of harassment (i.e., one with a new victim), irrespective of how severe it was. This Article thus posits that in instances where an employer situated a known harasser to supervise a new group of people, the risk that the harasser will offend again should fall on the employer, which acted affirmatively and with knowledge of the existing risk in retaining the employee, rather than on the employee, who, under current case law, must absorb the initial act of harassment and report it before she can potentially be compensated under Title VII.

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