A Hostile Environment: How the "Severe or Pervasive"Requirement and the Employer's Affirmative Defense Trap Sexual Harassment Plaintiffs in a Catch-22

Abstract

This Note argues that the combination of the "severe or pervasive" requirement and the employer's affirmative defense, as applied in lower federal courts, makes it very difficult for a hostile work environment sexual harassment plaintiff to prevail against his or her employer. Courts require actionable harassment to consist of one extremely severe incident or to continue long enough to become cumulatively severe or pervasive. But once the harassment has gone on long enough to become severe or pervasive, the employer's affirmative defense is increasingly likely to bar the plaintiff's prima facie case. The result is that as the plaintiff's prima facie case grows stronger, the probability that the employer will prevail on its affirmative defense also increases. This Note argues that such a contradictory approach is unfair to plaintiffs and proposes a more equitable standard that would place plaintiff's and employers on equal footing.