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The 'Faithless Servant' Doctrine

By Mark N. Reinharz

For decades, employers have been warned about the potential liability they face in defending against sexual harassment lawsuits. Much time and effort has been devoted to training management and all employees about the importance of reporting sexual harassment complaints, let alone not engaging in activity that may be viewed as inappropriate for the workplace. Yet despite these efforts, the number of sexual harassment complaints continues to be high. For example, in fiscal year 2008, 13,867 sexual harassment charges were filed with the EEOC and state or local agencies nationwide, an increase of 11% from the prior year.

Despite these increases, employers may have a bit more ammunition in their arsenals to prevent or even recover the costs associated with sexual harassment or other kinds of misconduct by its employees. Applying the “faithless servant doctrine,” the Massachusetts Supreme Judicial Court recently permitted an employer to recover compensation it had paid to a high-level executive who had been the subject of numerous sexual harassment complaints by other employees.

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