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24 Litig. News 1 (1998-1999)

handle is hein.journals/lignws24 and id is 1 raw text is: American Bar Association
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YDefending Liberty
Pursuing Justice
Nonprofit Organization
U.S. Postage


T[wo recent Supreme Court deci-
sions may create a new form of role
reversal in the age-old battle between
the sexes.
With a new test for vicarious liability
in sexual harassment cases, manage-
ment lawyers who previously geared
their defense towards summary judg-
ment may now find thibselves defend-
ing Rule 56 motions, according to
employment law experts in the Section
of Litigation.
In the closing days of its last term,
the Supreme Court crafted a new test,
based on common law agency princi-
ples, for employers' liability for acts of
sexual harassment committed by their
In the companion cases of Faragher
v. City of Boca Raton and Burlington

Industries, Inc. v. Ellerth, the Court said
employers can be liable for hostile en-
vironments created by supervisors with
immediate or higher authority over vic-
timized employees.
The effectiveness of the traditional
defense approach to sexual harassment
cases, to take discovery of the plaintiff
and position the case for summary
judgment, is likely to be lessened by
these cases, says Herbert E. Gerson,
Memphis, TN, Immediate-Past Co-Chair
of the Section's Employment & Labor
Relations Law Committee. You may
also see more plaintiffs moving for sum-
mary judgment on the issue of liability.
These two cases will be especially
helpful to plaintiffs where the employer
does not have a good harassment policy
in place, adds Jon W. Green, Spring-

field, NJ, Co-Chair of the Employment
& Labor Relations Law Committee.
The decisions heighten awareness
[among employers] of the need for
better training, better policies and
better procedures, Gerson says. The
decisions may also spawn a cottage
industry of sexual harassment investi-
gators to aid employers, and manage-
ment attorneys will probably be busy
reviewing and re-drafting harassment
policies, Green says.
Faragher involved a woman who had
worked as a lifeguard while attending
college. She charged that the conduct
of two of her supervisors was discrimi-
natory harassment sufficiently serious
to alter the conditions of her employ-
ment and constitute an abusive working
After a bench trial, the judge agreed
and held the employer vicariously liable.
The Eleventh Circuit Court of Appeals,
however, reversed that finding.
(Please turn to page 2-Harassment)

Congress Creates New
Accountant-Client Privilege
Falls short of attorney-client privilege
Tio the chagrin of many tax lawyers, Congress has
forged a new shield to protect taxpayer communications
with their accountants similar to the attorney-client
Under the Internal Revenue Service
Restructuring and Reform Act of 1998,
authorized practitioners can refuse to  The new pro
disclose client communications that  limitedprote
form the basis for their tax advice in  communicatio
noncriminal tax matters before the IRS   attorney
or in federal court.
Accounting firms had lobbied Con-
gress for an accountant-client privilege to gain parity in
competing with lawyers for clients and business. The at-
torney-client privilege was seen as an ace-in-the-hole for

ns tha

tax lawyers, who can reassure clients that the IRS will
not become privy to their confidential communications.
In attempting to secure a similar privilege, accountants
argued that the law should provide taxpayers with addition-
al privacy. They also asserted that the new privilege would
provide equal treatment for all citizens because those who
cannot afford high-priced tax counsel could still have their
communications protected. By couching the issue in these
terms, the accounting lobby attempted to avoid the perception
that the change was intended primarily to benefit accountants.
Opposition from the tax bar was
somewhat muted because a number of
provides more     lawyers are also accountants or work
For confidential  for accountants, says Sarah A. Duckers,
Houston, Co-Chair of the Section of
n the traditional Litigation's Tax Litigation Committee.
t privilege.         Big accounting firms [tend to be]
clients of large law firms, Duckers
says, adding that these long-standing
relationships helped to muzzle disagreement over the mer-
its of the new law. Lawyers from jurisdictions that have
(Please turn to page 3-Privilege)

Supreme Court Puts Employers on
Defensive in Sex Harassment Cases


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