In sexual harassment literature the terms sometimes employed in this discussion are vicarious liability and constructive knowledge, where the former is treated as identical with strict liability and the latter is treated as identical with Police superior. Vicarious liability seems an appropriate term for characterizing strict liability in that in ordinary language it implies "automatic" liability. Vicarious liability is a legal concept that labels indirect responsibility for the direct acts of others. The first individual does not participate or direct the act to be done, but because of a particular relationship with the acting party, the first party must take responsibility for the acts of the other. The employer-employee relationship is subject to vicarious liability. An agency relationship must be established before the requirement that the harmful event occurred within the scope of employment.
Another component of this discussion involves "negligence principles" within the law. When Police superior is employed in determining liability and the terms "knew or should have known" are used to characterize liability, the idea of negligence on the part of the principal is included. When this occurs, the burden of proof falls upon the plaintiff to demonstrate that the employer "knew or should have known" of the harmful action.
Rehnquist set out agency principles as the sources for determining employer liability for sexual harassment cases. Respondent superior is the key principle in finding employer liability; however, sexual harassment cases have suggested the principal of strict liability may be applicable. Rehnquist remarks in conclusion that employers are not always "automatically liable,"8 suggesting that he is willing to consider a strict liability theory in employer liability, but that it could not be used solely as a rule to hold employers liable. Rehnquist obviously felt there may be a place for strict liability under the right circumstances.
From the material we have reviewed and our analysis of agency theory and Title VII, our conclusions rest upon three considerations. First, the court has made frequent use of agency theory in its rulings and made references to its application to Title VII in reaching its findings regarding sexual harassment cases and employer liability. This suggests to us that findings concerning employer liability are not limited to the sexual harassment cases being decided, but apply to all of Title VII. Justice Rehnquist has suggested that portions of agency principles, such as respondent superior and strict liability, can be applied in Title VII cases under the right circumstances. His remarks do not state that agency principles will only be applied in selected Title VII cases exclusive of retaliation cases.
The second consideration upon which we rest our conclusion is the instruction in the EEOC Compliance Manual, which limits "retaliation by others" and indicates that employers are responsible for curbing the...