Tennessee Law Review
Document Type
Article
Abstract
The focus of recent workplace harassment scholarship has been on irreproachable workplaces. Without detracting from that literature, this Article seeks to rehabilitate the individualist approach as a worthy supplement to institutional liability. It explicates, contextualizes, and outlines solutions to the moral hazards that would shelter workplace harassers from the risks of individual harasser liability if such liability ever comes to pass, thereby reclaiming the deterrent potential of the individualist approach. This Article begins by exploring how, without additional law reform, individual harasser liability would fail to optimally deter workplace harassment in two regards. First, it presents and analyzes original empirical evidence exposing the degree to which employers shield accused harassers from risk through indemnification, defense, and insurance arrangements. Second, it exposes the free rider problem that would arise from employer-funded settlements of workplace harassment claims even if these "harasser risk shields" were eradicated. Then, it contextualizes these moral hazards within social sciences scholarship; through the lenses of law and economies and tort law's optimal deterrence theory, it resolves that non-transferable risk for both employers and accused harassers would optimally deter workplace harassment. these moly, this rice considers he dublic opterial mishe aes. il assesses different models of the individualist approach, explaining why some would deter harassment better than others. It then explores articulations of public policy against insurance for intentional acts, applies that public policy to harasser risk shields, and argues for interdiction of harasser risk shields by administrative agencies. Lastly, it considers a proposal to decrease institutional liability, emereby decreasins surers restinion s ortunities, but curb shoulder the risks of harassment themselves.
Recommended Citation
Nelson, Ryan H.
(2022)
"Workplace Harasser Liability: Assailing Moral Hazards and Rehabilitating the Individualist Approach,"
Tennessee Law Review: Vol. 89:
Iss.
4, Article 5.
Available at:
https://ir.law.utk.edu/tennesseelawreview/vol89/iss4/5
Publication Date
2022