The Supreme Court has taken an inconsistent approach to allowing vicarious liability under major civil rights statutes. In recent cases, the Court has permitted qualified vicarious liability for supervisor's sexual harrassment under Title VII, but rejected vicarious liability under Title IX. Earlier, the Court rejected vicarious liability for local governements sued under Section 1983. In this Article, Professors Fisk and Chemerinsky describe the Court's inconsistent approaches and arge that they cannot be justified by the text or legislative history of these statutes. Professors Fisk and Chemerinsky argue that each of these statutes is meant to achieve the same purpose, deterring civil rights violations liability advances these goals, and that the Court, therefore should interpret each of these important civil rights statutes to allow such liability.
Catherine Fisk & Erwin Chemerinsky, Civil Rights Without Remedies: Vicarious Liability Under Title VII, Section 1983, and Title IX, 7 William & Mary Bill of Rights Journal 775-800 (1999)