雇主责任保险-全英文(doc187)-保险综合(编辑修改稿)

雇主责任保险-全英文(doc187)-保险综合(编辑修改稿)内容摘要：

of unlawful employment discrimination. n31 second, it is via the deterrent effect of damages that title vii [*646] creates a preventive nondiscriminatory workplace atmosphere. N32 when congress included backpay as a remedy, it created the moary motivation to ply with the law. N33 the supreme court has stated, if employers faced only the prospect of an injunctive order, they would have little incentive to shun practices of dubious legality. n34 the court explained clearly title vii39。 s role in motivating employers to eliminate workplace discrimination: it is the reasonably certain prospect of a backpay award that 39。 provides the spur or catalyst which causes employers and unions to selfexamine and to selfevaluate their employment practices and to endeavor to eliminate ... The last vestiges of an unfortunate and ignominious page in this country39。 s history.39。 n35 The deterrent effect of damages under title vii evolved when congress further empowered employees by passing the civil rights act of 1991, which guaranteed jury trials and provided pensatory and punitive damages for discrimination lawsuits. N36 congress evinced a particular focus by addressing intentional discrimination. Not only did it amend the damage provisions, it stated that the act39。 s primary purpose was to confirm that the principle of antidiscrimination is as important as the principle that prohibits assaults, batteries and other intentional injuries to people. n37 congress noted that [*647] strengthening title vii39。 s remedial scheme to provide moary damages for intentional gender and religious discrimination [was] necessary ... . Moary damages simply raise the cost of an employer39。 s engaging in intentional discrimination, thereby providing employers with additional incentives to prevent intentional discrimination in the workplace before it happens. n38 congress explained that employer liability deters specific employers and the employer munity as a whole from future discriminatory conduct. N39 in 1998, the supreme court agreed by holding that employment discrimination is a fundamental abuse of employer power. N40 they renewed their view of title vii39。 s deterrent purpose in 2020. N41 in the next section, we address whether epli undermines employment law39。 s deterrent effect and, as a result, undermines the moral framework the law creates. Ii. Does epli undermine the moral framework offered by employment law? The overarching goal of employment law is to deter wrongful employment practices. N42 to synthesize the evolution of [*648] employment law and its deterrent effect into a framework where people are encouraged to engage in the most rational moral behavior, one must recognize that the law represents a rule system that guides the public to a rational standard of conduct in the workplace. N43 the rule, as we surmise it, is that discrimination is unacceptable Page 5 87 Va. L. Rev. 85, * conduct for which the wrongdoer should be held responsible, with that responsibility increasing for a failure to prevent the discrimination. That discrimination is unacceptable is difficult to dispute. That the wrongdoer must personally bear the liability is debatable given the cost such liability can create and the resulting desire for an employer to transfer the risk of that liability. Despite employers39。 desire to limit their risk, the legal rule remains and builds a moral framework at the workplace for employers who might otherwise engage in or fail to prevent wrongful employment practices. Admittedly, epli would not affect the incentives of an employer who would provide a moral and nondiscriminatory workplace regardless of legal standards. This paper, however, does not address the nondiscriminatory employer. Analysis of moral hazard focuses upon those who seek to do wrong or fail to prevent wrongful behavior and need an incentive to do right. N44 we similarly address employers who would otherwise treat their employees in an immoral way and need an incentive to treat them properly. Employment law has evolved to create this incentive through the deterrent effect of damages with corresponding reductions in liability for prevention. When the supreme court decisions of 1998 made employers responsible under circumstances where they knew or should have known about discriminatory conduct, it also established rather clear affirmative defenses available to insulate employers from imputed liability. N45 to establish an effective affirmative defense, employers must: (1) exercise reasonable care to prevent and promptly correct supervisor discrimination [*649] (including dissemination of an effective antidiscrimination policy)。 (2) demonstrate that the harassed employee fails to take advantage of the system in place. N46 the supreme court reiterated its position in the 2020 case of suders when it specifically noted congress39。 intent to connect title vii39。 s deterrent effect with prevention, with a reduction in liability when that prevention was sufficient. N47 Transferring the risk of damages via epli creates a moral hazard by undermining this deterrent effect. N48 other types of liability insurance, such as automobile insurance, address this moral hazard by relying heavily on the wrongdoer39。 s other incentives namely, the wrongdoer39。 s incentive to avoid their own injury. N49 one is less likely to drive dangerously knowing that such behavior could result in personal harm. Employment practices, however, are peculiar in that the wrongdoer has no risk of personal injury. N50 unlike the automobiledriver who may injure him/herself when causing an accident, the employer who would discriminate is halted only by the threat of damages. If those damages are paid by a third party, what then halts the employer? [*650] the urgency in answering this question is growing to the extent that claims are increasing and the damages awarded are ri。