This Article offers a normative framework for how the current employer liability standards should be applied to sexual extortion claims. It analyzes the realist-formalist dichotomy in the supervisory sexual extortion context and concludes that the formalist approach is more consistent with the current employer liability standards and related policy considerations. The Article then explains how certain courts have incorrectly applied the second prong of the affirmative defense and inappropriately denied liability by failing to consider the avoidable consequences doctrine and related harm-avoidance principles upon which the second prong is based. The Article concludes by offering a framework for how these harm-avoidance principles apply in the supervisory sexual extortion context specifically, and the supervisory sexual harassment context more generally, such that employers are held liable for supervisory sexual extortion and sexual harassment under circumstances where it is reasonable to impose liability.
39 U.C. Davis L. Rev. 529 (2006)