Vanderbilt Law Review

First Page



With its 1986 decision in Meritor Savings Bank, FSB v. Vinson,the United States Supreme Court put its imprimatur on the Title VII sexual harassment cause of action that had emerged over the preceding decade. Early commentary on the case tended to emphasize this aspect of the Court's decision or to speculate about Meritor's impact on the future course of Title VII sexual harassment litigation. Getting relatively short shrift in this early commentary, however, was the Court's command that "agency principles" --the common law of agency-- be consulted to determine an employer's liability for harassment committed by its employees.' As subsequent observers noted, the Court's recourse to agency law added considerable confusion to the employer liability issue. This aspect of Meritor, however, has rarely, if ever, been directly challenged.

After nearly five years of judicial floundering with agency principles, it seems time for such a challenge. This Article argues that Meritor's command to consult agency law on the employer liability question was a bad ruling from almost every conceivable angle. Part II briefly surveys the evolution of sexual harassment law and the rules courts have applied to determine employer liability. Part III examines in detail the agency law rationales that allegedly underlie those rules, finding them individually and collectively defective. This examination also suggests that agency law is not well suited to the task the Court assigned it. Part IV bolsters this suggestion in two different, though complementary, ways. First, it argues that the Meritor Court almost certainly was wrong when it ruled that Title VII requires courts to consult agency law when determining an employer's sexual harassment liability. Second, it argues that agency law is useless for resolving the policy questions underlying the debate about the scope of such liability. Although the main aim of this Article is to attack Meritor's command to employ agency principles, Part IV contains some tentative recommendations on the employer liability issue.