More On How the 11th Circuit Dodged Deciding Tough Questions Under Faragher/Ellerth
by Michael Fox
Professor Grossman of Hofstra University echoes my earlier report on how the 11th Circuit dodged some key questions under the Faragher/Ellerth affirmative defense in its recent Walton v. Johnson & Johnson decision. Her findlaw column goes a step further, arguing that the 11th Circuit was wrong. Employers relying on Walton for protection in similar circumstances should understand the questions were dodged on narrow procedural grounds, by a court that may have felt something about this particular case didn't merit the result that Professor Grossman argues is required. The next case with similar facts might well turn out differently.