concurring in part and dissenting in part.
I concur with the majority view, set forth in the Court’s per curiam opinion, that the district judge properly dismissed Jansen’s retaliation and intentional infliction of emotional distress claims. Per Curiam Op. at p. 493. I also agree with the majority that the district judge’s grant of summary judgment in Jansen in favor of PCA should be reversed and remanded in order that a jury might address the limited question of whether PCA was negligent with respect to the alleged hostile work environment sexual harassment by Jansen’s supervisor. Per Curiam at pp. 493-494. I write separately because I do not agree that an employer who lacks knowledge of harassment by one of its supervisors should be held strictly liable under “agency principles,” in spite of the fact that the employer may have had every intention of eliminating such conduct from the workplace, and may even have formulated and publicized a complete sexual harassment policy. I am unable to join with Judges Posner, Flaum, and Diane Wood,1 each of whom, in differing degrees, urges that we use the cases before us as a vehicle for announcing bold and unprecedented Seventh Circuit law that will make employers strictly liable in Title VII cases involving allegations of sexual harassment by a supervisor. I am convinced that the creation of a strict liability standard is contrary to the Supreme Court’s decision in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), and at odds with the “agency principles” that the High Court has instructed us to consider in Title VII cases.
Strict liability for quid pro quo harassment by supervisors effectively amounts to almost “guilt by association,” a concept that is fundamentally unfair as well as inconsistent with “agency principles.” Under a regime of strict liability, the employer — similar to the taxpayer who is assessed a tax deficiency by the IRS — would be presumed guilty, and the traditional presumption of innocence cast aside; thus, the employer would be required to bear the burden of proving his innocence.2 Because the employer saddled with strict liability would not be permitted to argue that it lacked knowledge of the harassment or that it had measures in place to prevent the same, it would have only a limited opportunity to rebut this judicially-created presumption of guilt. In a quid pro quo case, for example, the employer could avoid liability only by proving that the alleged harassment did not occur, and the many factors that can and should weigh against a finding of negligence on the part of the employer (i.e., knowledge, preventive measures, sexual harassment policy) become irrelevant once strict liability is adopted. Judicially legislating a strict liability standard will also serve to increase the volume of Title VII litigation and impose a costly burden on American business that will obviously be passed on to taxpayers, workers, and consumers (as with judicial decisions that have continuously expanded tort liability in the products liability and professional malpractice areas).
*518With due respect for my fellow judges, the approaches which Judges Posner, Flaum, Easterbrook and Wood advocate disregard the need for judicial restraint and faithfulness to precedent in this highly-charged area of the law, and dramatically tip the very delicate balance of the scales of justice in favor of Title VII plaintiffs.3 As the Supreme Court noted in Meritor, when Congress enacted Title VII, it provided little guidance as to how the statute was to be applied in cases of sexual harassment:
The prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives.... The principal argument in opposition to the amendment was that ‘sex discrimination’ was sufficiently different from other types of discrimination that it ought to receive separate legislative treatment.... This argument was defeated, the bill quickly passed as amended, and we are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on ‘sex.’
Id. at 63-65, 106 S.Ct. at 2404 (citations omitted). However, “the fact that Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do.” United States v. Locke, 471 U.S. 84, 95, 105 S.Ct. 1785, 1793, 85 L.Ed.2d 64 (1985). The Court recognized this in Meritor when it advocated “agency principles” and concluded “that the Court of Appeals was wrong to ... impose absolute [strict] liability on employers for the acts of their supervisors.” Meritor, 477 U.S. at 73, 106 S.Ct. at 2408 (emphasis added).
As a federal appellate court, we must honor the Supreme Court’s Meritor decision and, in an exercise of judicial restraint, hold that an employer is liable for a supervisor’s acts of sexual harassment under the negligence standard only if and when the plaintiff can demonstrate that the employer knew or should have known of the alleged harassment and failed to take appropriate measures. Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320 (7th Cir.1992). Additionally, the imposition of vicarious liability might conceivably be proper in that rare situation (not presented in either Jansen or Ellerth) where a plaintiff is able to establish that the supervisor acted with actual or apparent authority to engage in such conduct. Restatement (2d) Agency § 219(2)(a) & (d).
A strict liability standard, in contrast with the more flexible and reasonable negligence standard, will preclude us from accounting for “the circumstances of [each] particular case,” Meritor, 477 U.S. at 73, 106 S.Ct. at 2408, including the disparate corporate structures of modern business. As Judge Wood explains, Title VII runs the ambit in its application, reaching small firms with as few as fifteen employees, as well as large entities such as General Motors, with some 692,800 workers. Wood Op. at p. 572. For Judge Wood to suggest, however, that a supervisor who stands on the second lowest (the 692,-799th) rung of the corporate ladder at General Motors “stands in the place of [his] principal,” Wood Op. at p. 572, to the same extent that the lowliest supervisor (the fourteenth employee) does at a fifteen person firm is simply untenable. In my view, to impose strict liability merely because an employee is designated as a “supervisor” in my view disregards the realities and complexities of modern corporate America.
I. EMPLOYER LIABILITY UNDER TITLE VII
A Title VII Is Not A Strict Liability Statute
When called upon to determine when an employer may be held liable under Title VII for sexual harassment by one of its supervisors, we must start with the Supreme Court’s clear and unambiguous mandate in Meritor that we “look to agency principles.” 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 *519(1986). The High Court in Meritor, far from endorsing an all-expansive interpretation of “agency principles,” specifically rejected strict liability and made clear that agency principles provide a limitation on employer liability rather than a blank check for expanding liability. Id. Specifically, the Meritor Court stated:
We ... decline the parties’ invitation to issue a definitive rule on employer liability, but we do agree ... that Congress wanted courts to look to agency principles for guidance in this area. While such common-law principles may not be transferable in all their particulars to Title VII, Congress’ decision to define ‘employer’ to include any ‘agent’ of an employer, 42 U.S.C. § 2000e(b) surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency §§ 219-237 (1958).
Id. (emphasis added). Meritor’s rejection of strict liability remains the law, and has not been superseded by any precedent from the Nation’s highest court, although some courts, in attempting to apply “agency principles,” have improperly concluded that strict liability is mandated in sexual harassment cases. Curiously, even Judge Wood, who champions a sweeping strict liability standard, concedes that “the Meritor Court viewed agency principles as limiting, not expansive, factors in determining liability.” Wood Op. at p. 569.
The political winds of change have apparently affected the views of the EEOC regarding employer liability, for while the EEOC, as amicus curiae, argued for a negligence standard in Meritor, it now urges us to adopt a “strict liability” rule in cases where a supervisor has allegedly harassed a subordinate. The EEOC’s former position was that:
If the employer has an expressed policy against sexual harassment and has implemented a procedure specifically designed to resolve sexual harassment claims, and if the victim does not take advantage of that procedure, the employer should be shielded from liability absent actual knowledge of the sexually hostile environment.... In all other cases, the employer will be liable if it has actual knowledge of the harassment or if, considering all the facts of this case, the victim in question had no reasonably available avenue for making his or her complaint known to appropriate management officials.
Meritor, 477 U.S. at 71, 106 S.Ct. at 2407-08 (quoting Brief for United States and EEOC as Amici Curiae). At oral argument, Judge Wood attempted to explain away this patent inconsistency between the EEOC’s previous and current positions on the grounds that “Meritor is ten years old.... We have come, you know, a very long way in ten years. ” Meritor should be dispositive of the issues before us, and I disagree with the suggestion that we as judges on a United States Circuit Court of Appeals have a license to take the law beyond Meritor simply because that decision may not comport with our individual notions of social progress in 1997.
The Supreme Court in Meritor also recognized that the “existence of a grievance procedure and a policy against discrimination,” while not necessarily dispositive, is “plainly relevant” and definitely a fact that should be considered in determining the extent of an employer’s Title VII liability. Id. at 72-73, 106 S.Ct. at 2408. The Court’s willingness to acknowledge the liability-mitigating effect of an anti-discrimination policy, even when the harasser is a supervisor, makes clear that in the interest of justice and fairness, we are bound by a negligence standard in all sexual harassment cases, regardless of the perpetrator’s rank vis-a-vis his victim.
Because Meritor was a hostile work environment case,4 the Court did not definitively *520reach the question of an employer’s liability for quid pro quo harassment by a supervisor. Nevertheless, there are courts which purport to follow Meritor and have “look[ed] to agency principles” as a vehicle to expand Mentor’s holding- and conclude that strict liability is the proper standard in supervisory quid pro quo cases. See, e.g., Nichols v. Frank, 42 F.3d 503, 513-14 (9th Cir.1994) (collecting cases); but see Nash v. Electrospace System, Inc., 9 F.3d 401 (5th Cir.1993) (Title VII is not a “strict liability statute for employers”). Our own post-Meritor decisions to date have not specifically addressed the issue of whether an employer is strictly liable for quid pro quo harassment by a supervisor, except to state in clear and unambiguous language that this remains an open question in light of Meritor. As Chief Judge Posner, writing for this court, explained just two years ago:
An employer is not strictly hable for sexual harassment of one worker by another unless,. perhaps, the harassment takes the form ... of an abuse of authority, as where a supervisor threatens to fire a subordinate if she refuses to have sex with him. In such cases, a number of courts treat the supervisor as the employer, whether correctly or not we need not decide. (Neither the Supreme Court nor our court has had occasion to decide the question.) In all other cases, it is clear, the criterion for when an employer is liable for sexual harassment is negligence.
Baskerville v. Culligan International Co., 50 F.3d 428, 431-32 (7th Cir.1995) (emphasis added) (citations omitted).
Prior to Meritor, this circuit for a brief period adhered to a rule of strict liability, as set forth in Horn v. Duke, 755 F.2d 599 (7th Cir.1985). Although my respected colleague Judge Flaum relies to an extent upon the reasoning in Horn (see Flaum Op. at pp. 496-497), this reliance is at best confusing, for the Horn case was decided one year before the Supreme Court’s Meritor decision, and Horn has since been called into question by this court. In North v. Madison Area Ass’n for Retarded Citizens, for example, we addressed the proper scope of employer liability in the context of a race-discrimination claim under Title VII, and, in light of Meritor, we disavowed Horn’s rule of strict liability. North, 844 F.2d 401, 407 (7th Cir.1988). Although North, a post-Meritor decision concerned a case of race discrimination, as opposed to sexual harassment, it nonetheless addressed the proper scope of an employer’s liability for the discriminatory acts of a supervisor. In North, we stated unequivocally that “in light of the decision in Meritor ... employers are no longer to be held to ... a strict standard in every case in which the actions of a supervisory employee are in question.” Id. (emphasis added). This court’s North decision held that in the absence of evidence that the supervisor acted with actual or apparent authority,5 the employer “could be held liable for discriminatory actions which were attributable to [the supervisor] only if it knew or should have known of those actions and failed to take reasonable remedial measures.” Id. I am at a loss to understand why this court should wish to reverse course and re-instate a strict liability rule that we have held to be improper under Meritor.
This court has consistently rejected the strict liability principle in the context of sexual harassment cases involving non-supervisory employees. In Juarez, for example, a 1992 opinion Judge Cudahy authored, we cited Meritor for the proposition that “[e]mployers are not strictly liable under Title VII for sexual harassment engaged in by their employees” and proceeded to analyze the *521facts of the ease under the accepted “knew or should have known” rubric (i.e., negligence). 957 F.2d at 320; see also Baskerville, 50 F.3d at 431-32.
In line with the principles enunciated in Meritor, we should apply a negligence standard in the cases before us, and in all cases where a plaintiff seeks to hold an employer liable for acts of sexual harassment allegedly committed by another employee. Notice to the employer (i.e., knowledge) is a key component of the negligence standard. As Chief Judge Posner very recently observed (in an opinion which I joined along with Judge Easterbrook), an “employer’s duty to investigate and if appropriate take remedial measures is not activated until the employee complains of sexual harassment or information about the harassment comes to the employer’s attention from some other quarter.” Zimmerman v. Cook Co. Sheriff’s Dept., 96 F.3d 1017, 1019 (7th Cir.1996).6 What constitutes “appropriate remedial action” depends on the gravity of the alleged harassment in a particular case, the information made available to the employer, and of course, the type of corrective action instituted. Baskerville, 50 F.3d at 432 (“Just as in conventional tort law a potential injurer is required to take more care, other things being equal, to prevent catastrophic accidents than to prevent minor ones, so an employer is required to take more care, other things being equal, to protect its female employees from serious sexual harassment than to protect them from trivial harassment.”).
B. The Nature of Strict Liability
Before we even think about jettisoning the strict liability doctrine into the law of employment discrimination in this circuit, it is imperative that we closely examine the nature of the strict liability doctrine, as well as its origins and purpose in tort law. In the interests of justice, we must analyze and determine whether strict liability, whatever its arguable merits in other areas of the law, is well-suited to the Title VII context. Under a strict liability theory, the plaintiff need not establish that the employer ivas negligent or blameworthy, or that the employer authorized, condoned, or sanctioned harassment in the workplace, for the defendant under this theory is strictly liable, or liable “without fault. ” W. Page Keeton et al, Prosser and Keeton on the Law of Torts § 75, at 534 (5th ed.1984). Strict liability or “liability without fault” is the exception rather than the norm in Anglo-American tort law, for the doctrine has traditionally been confined to those situations where a defendant “engaged in some kind of activity which exposed others to a risk of harm....” Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. Union Pacific Railroad Co., 78 F.3d 285, 290 (7th Cir.1996) (discussing environmental statute which “impose[d] strict liability on an owner of property based merely on ownership without regard to what actions the owner took on the property to cause pollution.”). For example, under the common law of many jurisdictions, a party who engages in “abnormally dangerous” or “ultrahazardous” activity that results in harm (such as engaging in blasting with dynamite in a residential area) may be held strictly liable, even though the party engaged in the activity exercised due care to prevent the resulting harm. See, e.g., Opal v. Material Service Corp., 9 Ill.App.2d 433, 133 N.E.2d 733 (1956); see also Restatement (Second) of Torts §§ 519 & 520 (1977).7
The rationale for strict liability is most often stated in policy terms, and specifically, economic terms. As the California Supreme Court explained in Greenman v. Yuba Power Products, Inc., a landmark products liability decision, “[t]he purpose of strict liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons *522who are powerless to protect themselves.” 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897, 901 (1963). In jurisdictions that recognize the doctrine of strict liability for defective products, a company which manufactures a faulty product and places it in the stream of commerce is presumed to be legally responsible if harm results from the use of that product, unless the defendant can establish a recognized defense such as assumption of risk or misuse of the product. Louis R. Framer, et al. 2 Products Liability § 8.01 (1997).8 Strict liability literally shifts the burden of proof from the plaintiff to the defendant, reflecting a policy judgment that manufacturers, as a general rale, should bear the costs associated with defective products that cause harm.
As discussed below, I am convinced that the same cost-shifting rationale which may be argued to support a theory of strict liability for manufacturers of defective products (or those who engage in ultrahazardous activities such as blasting with dynamite) does not justify making employers “strictly liable” for the seemingly intractable social problem of sexual harassment. In my view, therefore, the adoption of strict liability in the employment context is not only contrary to agency principles, it also represents a novel, ill-advised, and harmful extension of the doctrine of strict liability that will have deep and lasting social and economic consequences. Policy decisions of this magnitude have traditionally been left to the legislative branch of government, and should remain the province of the people’s elected representatives. In fact, Congress has not even addressed the issue of an employer’s liability for sexual harassment, much less indicated that employers should be held strictly liable under a “cost-shifting” theory. Until such time as Congress — the Nation’s true legislature — has spoken on this question, it would be more proper for us to refrain from imposing the far-reaching standard of strict liability by judicial edict.
C. Critique of Strict Liability Theories
Before analyzing the strict liability theories outlined by Judges Posner, Flaum, Easterbrook, and Diane Wood, let us initially define the term “agency principles.” Our duty is to interpret the common law of agency, not to make new law. We therefore look to the principles set forth in the Restatement (2d) of Agency, which was cited in the Meritor decision, and in particular § 219 of the Restatement. As the trial judge in Jansen explained, § 219 delineates three potential theories for holding employers liable for the sexual harassment of their employees:
[1] Section 219(1) holds employers responsible for torts committed by their employees within the scope of their employment .... [2] Under § 219(2)(b), masters are liable for their own negligence or recklessness; in a harassment case, this is typically negligent failure to discipline or fire, or failure to take remedial action upon notice of harassment. [3] Finally, under § 219(2)(d), if the servant relied upon apparent authority or was aided by the agency relationship, the master is required to answer.
Jansen, 895 F.Supp. at 1061 (quoting Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 106 (3d Cir.1994)). With respect to the first of these three theories (respondeat superior liability), it is crucial to recognize that:
The liability of an employer for torts committed by its employees — without any fault on his part — when they are acting within the scope of their employment, the liability that the law calls “respondeat superior, ” is a form of strict liability. It neither requires the plaintiff to prove fault on the part of the employer nor allows the employer to exonerate himself by proving his freedom from fault.
Konradi v. United States, 919 F.2d 1207, 1210 (7th Cir.1990) (emphasis added). An understanding of these theories provides a basis for addressing my colleagues’ respective positions, which I detail below.
*523 1. Judge Easterbrook’s Approach to Employer Liability
Judge Easterbrook and Judge Wood are of the opinion that state rather than federal law should define the parameters of an employer’s liability under Title VII, although none of the parties have urged us to take this curious and novel (indeed, unprecedented) approach. Out of the vast constellation of Title VII cases decided by the federal courts, including those that have addressed the issue of employer liability, I have been unable to locate a single precedent that supports the unique position of Judges Easterbrook and Wood on this choice of law question.9 In fact, Meritor provides a strong refutation of my colleagues’ position, for the Supreme Court in Meritor did not qualify or limit the “agency principles” that federal trial courts were to “look to ... for guidance,” much less require that “agency principles” be derived from state law. 477 U.S. at 77, 106 S.Ct. at 2410.10
Judge Easterbrook presents a somewhat abridged version of the Supreme Court’s recent decision in Atherton v. FDIC, — U.S. —, 117 S.Ct. 666, 136 L.Ed.2d 666 (1997), and cites that case for the proposition that “[w]hen a federal statute is silent, we obtain the necessary rule from state law, unless application of state law would undermine a federal norm.” Easterbrook Op. at p. 553. Atherton does state that “normally, when courts decide to fashion rules of federal common law, the guiding principle is that a significant conflict between some policy or interest and the use of state law ... must first be specifically shown.” Id. However, Atherton also makes clear that this “guiding principle” is only applicable to the creation of “ ‘federal common law’ in the strictest sense, i.e., a rule of decision that amounts, not simply to an interpretation of a federal statute ... but, rather, to the judicial ‘creation’ of a special federal rule of decision.” Id. (emphasis added). Similarly, in Northwest Airlines, Inc. v. Transport Workers Union, the Court noted that:
In almost any statutory scheme, there may be a need for judicial interpretation of ambiguous or incomplete provisions. But the authority to construe a statute is fundamentally different from the authority to fashion a new rule or to provide a new remedy which Congress has decided not to adopt.
451 U.S. 77, 97, 101 S.Ct. 1571, 1583, 67 L.Ed.2d 750 (1981) (emphasis added); see also United States v. Little Lake Misere Land Co., 412 U.S. 580, 593, 93 S.Ct. 2389, 2397, 37 L.Ed.2d 187 (1973) (“[T]he inevitable incompleteness presented by all legislation means that interstitial federal lawmaking is a basic responsibility of the federal courts.”). I agree with Chief Judge Posner that “[d]eciding what agency principles shall govern liability under a liability-creating statute such as Title VII is not free-wheeling common-law rule-making; it is filling a statutory gap, [which is] a standard office of interpretation." Posner Op. at p. 507 (emphasis added).
Even if, for purposes of argument, I were to agree with Judge Easterbrook’s premise that deciding the question of employer liability requires something more than traditional statutory interpretation, federal common law rules governing employer liability serve the basic “policy or interest” of uniformity. Interposing the statutes and decisional law of *524the fifty states, as proposed by Judges Easterbrook and Wood, would make a crazy-quilt of the law and thus grievously undermine our interest in fostering uniformity. Such an approach would make it most difficult, if not impossible, for an employer with plants in more than one state to comply with federal law, obviously necessitating that employers retain knowledgeable local counsel in several states, or even all of them.11 The Supreme Court has recognized that federal courts may “fill the interstices of federal remedial schemes with uniform federal rules ... when the scheme in question evidences a distinct need for nationwide legal standards.” Kamen v. Kemper Financial Svcs., Inc., 500 U.S. 90, 97-98, 111 S.Ct. 1711, 1716-17, 114 L.Ed.2d 152 (1991); see also O’Melveny & Myers v. FDIC, 512 U.S. 79, 88, 114 S.Ct. 2048, 2055, 129 L.Ed.2d 67 (1994) (recognizing “federal interest ... in uniformity”); Wilson v. Garcia, 471 U.S. 261, 266-69, 105 S.Ct. 1938, 1941-43, 85 L.Ed.2d 254 (1985) (resort to state law would result in “conflict, confusion, and uncertainty” concerning the appropriate statute of limitations in § 1983 cases). As Judge Manion points out most persuasively, Manion Op. at p. 564, the Court underscored the need for uniformity in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), which stated:
In past cases of statutory interpretation, when we have concluded that Congress intended terms such as ‘employee,’ ‘employer,’ and ‘scope of employment’ to be understood in light of agency law, we have relied on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms.... This practice reflects the fact that federal statutes are generally intended to have uniform nationwide application.
Id. at 740, 109 S.Ct. at 2173 (emphasis added) (quotation omitted).
Judge Easterbrook suggests that adopting uniform federal rules of decision for employer liability under Title VII is somehow contrary to Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), because “there is no free-floating [federal] common law.” Easterbrook Op. at p. 553. However, “[s]ince Erie, no decision of [the Supreme] Court has held or suggested that [the lower federal courts must] borrowf ] state law to fill gaps in federal substantive statutes.” DelCostello v. Teamsters, 462 U.S. 151, 160, 103 S.Ct. 2281, 2289, 76 L.Ed.2d 476 (1983) (no “mandatory rule that we apply state law in federal interstices.”); see also Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176, 63 S.Ct. 172, 174, 87 L.Ed. 165 (1942). As Justice Jackson once explained:
In some cases [a federal court sitting in a non-diversity case] may see fit for special reasons to give the law of a particular state highly persuasive or even controlling effect, but in the last analysis its decision turns upon the law of the United States, not that of any state. Federal law is no juridical chameleon, changing complexion to match that of each state wherein lawsuits happen to be commenced.... It is found in the federal Constitution, statutes, or common law. Federal common law implements the federal Constitution and statutes and is conditioned by them. Within these limits, federal courts are free to apply the traditional common-law technique of decision and to draw upon all the sources of the common law in cases such as the present.
D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 471-72, 62 S.Ct. 676, 686, 86 L.Ed. 956 (1942) (Jackson, J., concurring) (emphasis added).
I am in full agreement with the majority that the question of employer liability under Title VTI should be treated as a matter of federal law, and that we should reject what Judge Manion aptly labels “a 50-state standard wrapped in local common law.” Manion Op. at p. 564. The majority’s approach, in contrast with that of Judge Easterbrook and Judge Wood, is faithful to the principle that “[l]egal rules which impact significantly upon the effectuation of federal rights must ... be treated as raising federal questions.” Burks *525v. Lasker, 441 U.S. 471, 477, 99 S.Ct. 1831, 1836, 60 L.Ed.2d 404 (1979).
2. Judge Wood’s Approach to Employer Liability
Judge Wood (joined by Judges Easter-brook and Rovner) purports to follow “general principles of traditional agency law,”12 and insists that her approach “is not the ‘strict liability’ that the Supreme Court rejected in Meritor.” Wood Op. at p. 566 n. 2. However, a careful reading of her entire opinion clearly demonstrates that she has seen fit to go far beyond Mentor by endorsing an overly broad strict liability standard that is based upon an unprecedented and (I believe) incorrect expansion of the respondeat superior doctrine.
Judge Wood asserts, without support in case law, that the “proper inquiry” in determining whether an employer may be held liable under the doctrine of respondeat superior is “whether the supervisor1, acting at least in part with the purpose of serving the employer, committed the acts of harassment as he exercised the authority (actual or apparent) the employer conferred on him: hiring, firing, assigning work, disciplining other employees for harassing behavior, and the like.” Wood Op. at p. 574 (emphasis added). I have two principal objections to the way Judge Wood has re-fashioned the respondeat superior doctrine for purposes of Title VII:(1) her analysis greatly expands the concept of “scope of employment,” and (2) it fails to make clear who is (and is not) a “supervisor.”
I agree with Judge Wood that, in determining the scope of an employer’s respondeat superior liability under § 219, “[t]he first question ... should be whether the supervisor’s action was ivithin the scope of his employment.” Wood Op. at p. 573 (emphasis added). But Judge Wood’s definition of “within the scope of employment” is so broad and all-inclusive that it effectively imposes “automatic” or strict liability, contrary to the Meritor decision. Judge Wood argues that liability must be strict if a supervisor harasses another employee “as he exercise[s]” the actual or apparent authority delegated to him. The relevant conduct, according to Judge Wood, is “not the act of harassment,” but instead the “broader course of action,” i.e., the supervisor’s performance of authorized duties. Wood Op. at p. 574. I disagree. If we were to adopt this reasoning, the legal phrase “within the scope of employment” would in effect become meaningless, for it would encompass a panoramic range of conduct, whether authorized or not. Without defined parameters, the phrase “within the scope of employment” no longer serves to limit the reach of respondeat superior liability and becomes a kind of legal pit of quicksand, drawing in all manner of activity. Applying Judge Wood’s attenuated logic, a company could be held liable if its agent committed any kind of unauthorized conduct imaginable, short of rape,13 so long as the conduct somehow occurred “as [the supervisor] exercised” some kind of authorized job duty. For example, a television station could be held hable if one of its news reporters “lost his cool” and physically assaulted a person while recording an interview. Such an act would give rise to liability under Judge Wood’s theory because it occurred “as” the reporter was reporting on news (authorized activity), but respondeat superior liability should not be imposed on these facts because the conduct in question clearly falls outside the scope of the reporter’s legitimate duties and is not motivated by a purpose to serve the employer. Judge Wood’s analysis converts § 219’s theory of respondeat supe-*526nor (or “the master answers”) into a far more all-inclusive and unbending theory of strict liability or “guilt by association.”
The concepts advisedly set forth in § 219(1) of the Restatement are not so elastic. An employee’s conduct (i.e., sexual harassment) “is not within the scope of employment if it is different in kind from that authorized ... or too little actuated by a purpose to serve the [employer].” Restatement (2d) Agency § 228(2) (emphasis added); see also Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir.1996) (“intentional torts outside the scope of employment usually do not lead to an employer’s vicarious liability”); Joel v. Morrison, 6 C. & P. 501, 172 Eng. Rep. 1338 (1834) (servant’s conduct may not be imputed to the master when servant is “on a frolic of his own.”). As Judge Bork observed when dissenting from the D.C. Circuit’s decision in Meritor, “[ijntentional torts involving sexual escapades almost never result in employer liability because they are personally motivated.” Vinson v. Taylor, 760 F.2d 1330, 1332 n. 6 (Bork, J., dissenting) (emphasis added). Thus, a rule making employers liable for such escapades is “at odds with traditional practice.” Id. Judge Wood asserts that the language in Restatement § 228, quoted above, “imposes a meaningful limitation on the scope of employment, thereby ensuring that employers will not be held liable for the ‘frolics and detours’ of their employees or for acts that are unforeseeable to the employer.” Wood Op. at pp. 573-574. Yet for Judge Wood, it appears to be a given that unlawful quid pro quo harassment “will almost always fall within the scope of [a] supervisor’s employment and thus result in employer liability” because it occurs so often “as” (or while) the supervisor is performing authorized duties. Wood Op. at pp. 565, 574.
Judge Wood’s boundless definition of “scope of employment” contrasts sharply with the traditional understanding of that term. As set forth in a leading treatise on tort law, “scope of employment refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.”
W. Page Keeton et ah, Prosser and Keeton on the Law of Torts § 70, at 502 (5th ed.1984). While the general rule of respondeat superior embodied in § 219 holds that an employer may be liable for the tortious conduct of employees acting within the scope of their employment, it is crucial to note that:
not every act which an agent or servant may do while he is in the place appointed for the service, or during the time in which he is engaged in the performance, can be deemed to be within the course of employment, or within the scope of the authority. The test lies deeper than that; it inheres in the relationship which the act done bears to the employment. The act cannot be deemed to be within the course of employment unless, upon looking at it, it can fairly be said to be a natural, not disconnected and not extraordinary, part or incident of the service contemplated.
Hibma v. Odegaard, 769 F.2d 1147, 1168 (7th Cir.1985) (Coffey, J., dissenting) (quoting Cameron v. City of Milwaukee, 102 Wis.2d 448, 456, 307 N.W.2d 164 (1981)). The Restatement makes clear that “not all physical acts of the kind authorized performed within the time and at the place of service are within the scope of employment, since only those which the servant does in some part for the purpose of giving service to the master are included.” Restatement (Second) of Agency § 228, cmt. (a). If an employee has “ ‘stepped aside from the business of his principal to accomplish an independent purpose of his own,’” far removed from the scope and nature of his duties and responsibilities, the employer may not be held liable under the doctrine of respondeat superior. Hibma, 769 F.2d at 1168 (quoting Linden v. City Car Co., 239 Wis. 236, 239, 300 N.W. 925 (1941)).
In addition to broadening the meaning of “scope of employment,” Judge Wood’s analysis of respondeat superior liability for sexual harassment by supervisors fails to adequately address the definition of “supervisor.” Judge Wood describes a supervisor as one who “exercise[s] the authority (actual or apparent) the employer conferred on him: hir*527ing, firing, assigning work, disciplining others for harassing behavior, and the like.” Wood Op. at p. 574. This “definition” of supervisor raises a number of questions: Is an employee who exercises any one of the duties which Judge Wood delineates a “supervisor” for purposes of imposing strict liability? May an employee be deemed a supervisor even if the authority delegated to him (over firing, for example) is shared with others? And what activities fall within Judge Wood’s catch-all phrase “and the like,” which follows her list of supervisory duties? If we are to lock ourselves into a strict liability standard for supervisory cases, as Judge Wood proposes, it is imperative that we define “supervisor” most precisely.
Our cases interpreting the statutory definition of “supervisor” in the National Labor Relations Act, 29 U.S.C. § 152(11) (“NLRA”), have examined the meaning of this term in some detail and recognized that “[supervision in the elementary sense of directing another’s work” does not suffice to make an employee a “supervisor.” N.L.R.B. v. Res-Care, Inc., 705 F.2d 1461, 1465 (7th Cir.1983). Rather, a supervisor “must have authority over another’s job tenure and other conditions of employment.” Id.; see also N.L.R.B. v. Winnebago Television Corp., 75 F.3d 1208, 1213 (“The test of a supervisor under § 152(11) is whether his judgment was dispositive in personnel decisions.”). The need to define “supervisor” with precision— and to provide some meaningful, commonsense limitations on who may be deemed a “supervisor” — -is even more imperative in cases of sexual harassment because Title VII, unlike the NLRA,14 fails to provide a statutory definition of this term. It would be helpful if Congress filled in this definitional gap in the law, particularly because judicial opinions expanding employer liability have relied so heavily on the distinctions between harassment by supervisors and harassment that occurs among co-workers. In the absence of a statutory or judicial definition setting forth parameters for the term “supervisor,” sexual harassment plaintiffs will obviously have an incentive to characterize all alleged harassers as “supervisors,” even in cases where the wrongdoer lacked significant authority over the plaintiffs hiring, firing, or conditions of employment.
In defining “supervisor” and addressing what conduct does (and does not) fall “within the scope of employment,” we should recognize and understand that most employees, including those labeled as “supervisors,” are subordinate to a number of other, higher levels of management, and lack the authority to make personnel decisions regarding whom to hire, fire, or promote. Even an employee who is just above the bottom of the employment “chain of command” may have the singular authority to “assign[ ] work” to other employees, which, according to Judge Wood, is one of the duties that transforms an employee into a “supervisor” for purposes of Title VII liability. For example, a “sanitation engineer” employed by a garbage and trash collection company may be charged with overseeing a crew of two or three workers assigned to the same truck, and authorized to “assign work” (i.e., decide on a given day who will empty trash bins and who will operate the truck). However, just because the employee has been authorized to perform such minimal duties, or just because his job description, having been elevated solely for payroll purposes, classifies him as a “supervisor,” does not mean that he qualifies as a decision-maker in the corporate enterprise, much less that he falls within the upper echelon of responsibility at the firm.
A supervisor should only be considered as an agent of the firm when he is truly vested with more than a mere modicum of authority to act for, and on behalf of, his principal and when he is acting to advance the principal’s interests, as when an individual with authority to hire and fire, promote and demote *528another employee actually exercises that authority, and objectively believes that his actions are in the best interests of the firm. In my view, Judge Wood is grasping at a very thin reed of “agency law” if she wishes to hold an organization strictly liable for an employee’s intentional torts merely because that employee occupied some limited type of supervisory role within the firm, perhaps very far down in the company’s hierarchy. For example, an individual classified as a supervisor of the housekeeping services detail within a corporation acts “within the scope of his employment” when he gives directions to his cleaning staff about what cleaning compound to use, or which brand of brash or vacuum to use, or when he directs that they sweep the floors at 7:30 PM rather than 8:30 PM. Would Judge Wood likewise hold a newspaper strictly liable if an assistant city editor, in a fit of anger, physically assaulted or even went so far as to shoot and fatally wound one of the reporters whose work he supervised? Should a correctional facility be held strictly liable if it allows a prisoner extra compensation for directing the activities of a clean-up crew and the supervisor/prisoner sexually assaults one of the inmates under his supervision? All of these intentional and unauthorized acts by “supervisors” represent a departure from the employee’s legitimate supervisory role and therefore should not be imputed to the principal under the theory of respondeat superi- or. Yet under Judge Diane Wood’s all-expansive interpretation of § 219(1) and her imprecise definition of the term “supervisor,” liability could be imposed in each of these hypothetical situations, so long as the “supervisor’s” misconduct occurred during the course of performing authorized duties.
Turning to the facts of the cases under consideration, the alleged conduct of Jansen’s harasser (Antoni) and Ellerth’s (Slowik) fell outside the scope of their employment. As the Tenth Circuit observed in Hicks v. Gates Rubber Co., “sexual harassment simply is not within the job description of any supervisor or any other worker in any reputable business.” 833 F.2d 1406, 1418 (10th Cir.1987) (quotation omitted). Although Judge Wood seemingly acknowledges the limitations on respondeat superior liability by stating that the supervisor must “act[ ] at least in part with the purpose of serving the employer” Wood Op. at p. 574. In order for the employer to be liable, there is not a scintilla of evidence in either of the respective court records under review suggesting that the conduct of either Antoni or Slowik was motivated by a purpose to serve their employer. Like all of my colleagues on this court, I am unalterably opposed to true sexual harassment, which is vulgar, repulsive and uncalled for under any circumstances. However, I think it is obvious that those who engage in sexual harassment are driven by personal motives alone — motives that have nothing to do with furthering the aims and goals of their employers. As Chief Judge Posner, writing for this court, noted in a race discrimination ease:
[HJarassment is an intentional wrong, and the doctrine of respondeat superior makes an employer liable only for those intentional wrongs of his employees that are committed in furtherance of the employment; the tortfeasing employee must think (however misguidedly) that he is doing the employer’s business in committing the wrong. It would be the rare case where ... harassment against a co-worker could be thought by the author of the harassment to help the employer’s business.
Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir.1986) (emphasis added). In his scholarly review of post-Meritor sexual harassment law, Michael J. Phillips, a Professor of Business Law at Indiana University, has taken note of Judge Posner’s observations in Hunter concerning the intentional nature of harassment, and argued cogently that “[ejmployers should virtually never be liable for sexual harassment if respondeat superior is the agency principle of choice because such behavior is rarely, if ever, within the scope of employment.” Employer Sexual Harassment Liability Under Agency Principles: A Second Look at Meritor Savings Bank, FSB v. Vinson, 44 Vand. L. Rev. 1229, 1245 (1991) (emphasis added). An employee who sexually harasses another employee has not only violated the law, but in most cases (including the two before us today), he has likewise acted contrary to com*529pany policy. Because the harasser has clearly “stepped aside from the business of his principal” and acted beyond the “scope of his employment,” his actions cannot be attributed to his employer under the theory of respondeat superior as set forth in § 219(1).
Judge Wood’s opinion, with its elastic interpretation of the respondeat superior doctrine, represents a most dramatic expansion of employer liability. Her opinion is all the more sweeping because it goes on to suggest that we adopt a uniform mode of analyzing employer liability in all sexual harassment cases involving supervisors. Wood Op. at pp. 567-569. Not content to limit her version of strict liability to so-called quid pro quo cases, Judge Wood (joined by Judges Easterbrook and Rovner) would also extend that standard into each and every case in which a supervisor is alleged to have created a hostile work environment.15 Judge Wood’s broad, all-inclusive, boundless net of strict liability, reaching quid pro quo and hostile work environment cases alike, finds no direct support in case law from any circuit,16 much less the Supreme Court. Those circuits that have adopted a strict liability standard limit the application of that standard to quid pro quo cases only, as Judge Wood concedes. Wood Op. at p. 569; Nichols v. Frank, 42 F.3d 503, 513 (9th Cir.1994); Bouton v. BMW of North America, 29 F.3d 103, 106 (3d Cir.1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1127 (10th Cir.1993); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 183 (6th Cir.1992); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir.1989).
Quid pro quo harassment does not fall “within the scope” of a supervisor’s employment, as Judge Wood argues, because such conduct departs drastically from the supervisor’s authorized duties and is not motivated by a purpose to serve the employer. Similarly, acts which create a hostile work environment (such as unwelcome sexual advances, touching, remarks which suggest an animus towards women, and the like) fall far afield from the scope of a supervisor’s employment-related duties, as interpreted by the courts, and bear no relation to any legitimate activity that the supervisor is authorized to perform. As Judge Wood concedes in a footnote to her opinion, Wood Op. at p. 569, n. 4, the Eleventh Circuit recently rejected her view that employers may be held strictly liable under agency principles for acts of a supervisor which contribute to a hostile work environment. Faragher v. City of Boca Baton, 111 F.3d 1530 (11th Cir.1997) (en banc). In Faragher, two supervisory employees allegedly subjected the plaintiff, a female lifeguard employed by the City of Boca Raton, Florida, to “offensive comments, gestures, and touching.” Ms. Faragher brought suit against the city under Title VII, alleging that the municipality, as the common employer of herself and the harassing supervisors, should be held vicariously liable for the hostile work environment to which she was subjected. In rejecting Faragher’s claim, the Eleventh Circuit properly applied the principles of agency law, noting that when an “agent steps outside of his employment to do some act for himself which is not connected to his employer’s business,” then “the act is not within the scope of his employment.” Id. at 1536. In other words, “if the agent acts from purely personal motives [i.e., sexual harassment], he is usually considered to have departed from his employment and his employer is not liable.” Id. at 1537. The Court concluded that the harassers’ offensive language, gestures and touching provided an “archetypical example of employees stepping outside of the scope of their employment and seeking to further personal ends.” Id. In line with its proper understanding of agency law, the Eleventh Circuit, in an en banc decision, held that the city could not be *530held liable for the harassing conduct under a theory of vicarious liability. Id.
I am in agreement with the Eleventh Circuit that, if a supervisor or any other employee “acts from purely personal motives, ” as is inevitably the ease in a hostile work environment scenario, he has “departed from his employment and his employer is not liable’’ under the principle of respondeat superior. Id. A majority of this Court agrees that strict liability is not warranted in hostile work environment cases, Per Curiam at p. 495, and the dearth of supporting ease law for a “blanket rule” (extending strict liability to all cases involving supervisors) should certainly give pause to Judges Wood, Easterbrook, and Rovner, who are in a distinct minority on this issue.
3. Judge Flaum’s Approach to Employer Liability
Like Judge Wood, Judge Flaum believes that “[a]gency law [and specifically § 219] supports the imposition of vicarious liability upon employers for supervisory quid pro quo harassment.” Flaum Op. at p. 496. Judge Flaum reasons that when a supervisor uses the authority delegated to him to effectuate a quid pro quo, “ ‘the supervisor, by definition, acts as the company.’ ” Flaum Op. at p. 497 (quoting Steele, 867 F.2d at 1316)(emphasis added). Under this approach, the morally culpable harasser and the employer are treated as if they had somehow “merg[edj into a single entity,”17 in spite of the fact that the employer lacked any knowledge of the harassment and took reasonable measures to prevent such conduct in the workplace. To my way of thinking, Judge Flaum’s equating of employer and harasser is just a different colored facade on the same legal structure erected by Judge Wood, i.e., the theory that a “supervisor” (loosely defined) acts within the “scope of employment” (broadly defined) when he engages in quid pro quo harassment. Despite their differences, Judge Flaum and Judge Wood agree that an employer may be held strictly liable for quid pro quo harassment by a supervisor. I disagree with that proposition as a matter of both law and logic.
Although Judge Flaum advocates a strict liability standard for supervisory, quid pro quo cases, he states that the standard in hostile work environment cases should “remain at negligence.” Flaum Op. at p. 502. Thus, Judge Flaum’s approach is not quite as drastic as Judge Wood’s, in that it does not propose strict liability for hostile work environment eases. Nevertheless, Judge Flaum asserts that employers have a “heightened duty of care” when it comes to preventing hostile work environment harassment by supervisors. Flaum Op. at p. 502. He does not define the meaning of this “heightened duty of care” standard, although he states that the “remedial goals” of Title VII require an employer to take “systemic and proactive” steps to prevent harassment by supervisors. Flaum Op. at p. 498. Judge Flaum also states (and I agree with his statement) that companies should “foster a culture in which harassment is not tolerated.” Flaum Op. at p. 499. Unfortunately, this general statement fails to define or delineate his proposed standard, much less outline what employers must do in addition to the already widespread (and advisable) practice of adopting and publishing anti-harassment policies and instituting procedures for reporting harassment. If Judge Flaum’s “heightened duty of care” standard were adopted, appellate courts across the country would soon find themselves in a quagmire, plagued by litigants who would (understandably) ask them to define and elaborate upon a standard that comports with neither traditional negligence nor strict liability. I am unable to join Judge Flaum’s proposed modification of the traditional negligence standard for hostile work environment cases, and I am pleased to note that the court’s per curiam opinion avoids the ambiguities of his “heightened duty of care” standard. I join with the per curiam opinion’s straightforward holding that “the standard for employer liability in cases of hostile-environment sexual harassment by a supervisor is negligence, not strict liabili-*531ty_” Per Curiam Op. at p. 495 (emphasis added).
k- Judge Cudahy’s Approach to Employer Liability
Unfortunately, I do not find Judge Cu-dahy’s reflections upon Judge Flaum’s “heightened duty of care” standard particularly helpful; indeed, his analysis raises more questions than it answers. I will not address Judge Cudahy’s suggestion that employers in supervisory hostile work environment cases should be held to the same standard as “packers of parachutes or open heart surgeons,” Cudahy Op. at p. 504, for, in my view, neither heart surgery nor parachute-manufacturing are even remotely analogous to sexual harassment.
Judge Cudahy apparently believes that “vulnerable females” will not “feel free to report [sexual harassment] to the company,” even in those firms and business enterprises that have a policy against sexual harassment and established procedures for reporting the same. Cudahy Op. at pp. 504-505. In fact, Judge Cudahy goes farther and asserts, for reasons unexplained, that we ought to presume that female victims of harassment “could not reasonably be expected to report their problems” using such grievance procedures. I disagree with his contention that female victims of harassment are always “vulnerable,” nor should we assume that women (who have properly and successfully campaigned to be treated as equals in the workplace) are any less capable than men of sharing in the task of both monitoring and reporting sexual harassment. Furthermore, I am concerned that what Judge Cudahy may really be saying is that the existence of a sexual harassment policy (and reporting procedures) should have no bearing on employer liability in supervisory cases. An employer faced with such judicial commentary on the irrelevance of sexual harassment policies could well ask: Why establish, much less publish, a policy?
Another problem with Judge Cudahy’s opinion is his assertion that whenever a sufficiently hostile or abusive environment exists (i.e., whenever the harassment is severe or pervasive enough to be actionable), there should be a legal presumption that the employer had “constructive notice” (i.e., “should have known”) of the harassment. Cudahy Op. at p. 505. Here, I note that Judge Cudahy is improperly relying upon the reasoning set forth in the district court’s opinion in Faragher, 864 F.Supp. 1552, 1563 (S.D.Fl. 1994), which the Eleventh Circuit, on appeal, specifically and emphatically rejected in its en banc opinion. The Eleventh Circuit noted that:
[W]e do not agree with the district court’s apparent belief that simply because conduct is pervasive enough to create an abusive work environment the employer should be charged with knowledge of the conduct. The question of notice to the employer is distinct from the question of the environment’s abusiveness. Thus, the district court erred to the extent that it conflated the two inquiries.
Faragher, 111 F.3d at 1538. As recognized by the en banc court in Faragher, the traditional negligence standard (as opposed to the “heightened” version advocated by Judges Flaum and Cudahy) does, in fact, presently provide that an employer may be held liable if it knew or should have known about harassment in its workplace. In order that we might keep the two inquiries separate and thus avoid confusion, I agree with the Eleventh Circuit that the question of whether a specific employer, under a particular set of circumstances, “should have known” of harassment must remain separate and distinct from that of whether the harassment is of such a nature as to be actionable.18
5. The Need to Distinguish Quid Pro Quo and Hostile Work Environment Harassment
I wish to note a final and very crucial area of disagreement with Judge Flaum’s opinion as it relates to strict liability. As previously noted, Judge Flaum regards a quid pro quo as an essential prerequisite to imposing strict *532liability, and observes that “[Defining an actionable quid pro quo ... is central to the liability standard.” Flaum Op. at p. 499. However, neither of the cases before us, from a factual point of view, involved a true quid pro quo as previously defined in our case law.19 Judge Flaum has expanded the definition of quid pro quo harassment, possibly even beyond the bounds of reasonableness, in order to make the facts of Jansen come within the purview of a quid pro quo theory. Judge Wood, similarly, adopts an elastic approach to the definition of quid pro quo harassment, but this tactic is less crucial to her overall argument because, in her view, strict liability is the proper standard in any and all supervisory cases.
Quid pro quo harassment, as Judge Diane Wood noted in the very recent case of Bryson v. Chicago State University, “occurs in situations where submission to sexual demands is made a condition of tangible employment benefits.” 96 F.3d 912, 915 (7th Cir.1996) (emphasis added). Harassment of the quid pro quo variety has been described as “the most oppressive and invidious type of workplace sexual harassment” because:
There can be no justification for requiring a worker to engage in sexual acts in order to obtain a job or job-related benefit, or to avoid a job-related detriment. Most workers subjected to sexual pressure in the workplace have little means of defense— other than the law. For economic reasons, most workers cannot simply abandon their employment — new jobs are hard to find.
Nichols, 42 F.3d at 510. The term quid pro quo literally means “something for something.” Specifically, as Judge Rovner observed in Dey v. Colt Const. & Development Co., quid pro quo harassment involves an exchange that “link[s] an economic benefit to ... participation in conduct of a sexual nature.” 28 F.3d 1446, 1453 (7th Cir.1994). In order to succeed under a quid pro quo theory, according to Judge Wood’s opinion in Bryson, the plaintiff must demonstrate “what the ‘quo’ part of the quid pro quo was: [i.e.,] what tangible aspect of employment was affected.” Bryson, 96 F.3d at 916 (emphasis added).20 In other words, a plaintiff must establish that she “has suffered a materially adverse employment action” for refusing to engage in unwelcome sexual conduct with the harasser. Id. (emphasis added). “Materially adverse employment action” can take many forms, but (as “materially” implies) such action must somehow affect a tangible, economic aspect of the plaintiffs job. To give but one example, this court did not hesitate to find a “materially adverse employment action” in the recent Bryson ease, where the plaintiff, a university professor, alleged that she suffered the loss of her academic title and assignments to various administrative committees within the university after she refused to engage in sexual relations with a university official. Bryson, supra. We reasoned that both the title and the committee work contributed to the plaintiffs stature within the university administration and were “tangible employment benefits” because they “conferred prestige and [were] important to further professional advancement.” We observed that “[ujniversities have few ‘carrots’ to dangle in front of tenured faculty members who reach full professorhood,” and that the “reward structure” within a university often includes honorary or in-house titles and committee assignments, which can serve as the “building blocks” for a promotion within the university or the attainment of a more substantial position at another academic institution. Id.
While “materially adverse employment action” is a broad term, it is not without parameters and limitations established in case law. *533Specifically, “a supervisor’s mere threat or promise of job-related, harm or benefits in exchange for sexual favors does not constitute quid pro quo harassment.” Gary v. Long, 59 F.3d 1391, 1396 (D.C.Cir.1995) (emphasis added). “[I]t takes more than saber rattling alone to impose quid pro quo liability on an employer; the supervisor must have wielded the authority entrusted to him to subject the victim to adverse job consequences as a result of her failure to submit to unwelcome sexual advances.” Id. (emphasis added).
Hostile work environment harassment, by contrast with the quid pro quo variety, occurs “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (quoting Meritor, 477 U.S. at 65, 67, 106 S.Ct. at 2404-05, 2405-06). Although some of my fellow judges have proposed a dramatic expansion of employer liability under Title VII and have adopted a very elastic approach to quid pro quo harassment, I do not understand any of them to argue that we should abandon this Circuit’s definition of what constitutes actionable hostile work environment harassment. Our decisions have emphasized that “isolated and/or trivial remarks of a sexual nature do not satisfy the definition of sexual harassment,” Rennie v. Dalton, 3 F.3d 1100, 1107 (7th Cir.1993), cert. denied, 510 U.S. 1111, 114 S.Ct. 1054, 127 L.Ed.2d 375 (1994), and that conduct is not actionable as sexual harassment if it is “too tepid or intermittent or equivocal to make a reasonable person believe that she has been discriminated against on the basis of sex.” Galloway v. General Motors, 78 F.3d 1164, 1168 (7th Cir.1996) (holding that “safe harbor” exists for “low-level harassment.”); see also Gleason v. Mesirow, 118 F.3d 1134, 1143-44 (7th Cir.1997). Hostile work environment harassment, like quid pro quo harassment, is a form of sex discrimination prohibited by Title VII, and obviously is not condoned under our present case law. But the two types of harassment are separate and distinct forms of discrimination and must not be eo-mingled if we are to analyze and enforce sexual harassment law with coherence and clarity. In a hostile work environment case, unlike a quid pro quo case, the injury to the victim need not be directly linked to a tangible job benefit or detriment. See, e.g., Baskerville, 50 F.3d at 430 (“[t]he concept of [hostile work environment] sexual harassment is designed to protect working women from the kind of male attentions that can make the workplace hellish for women.”).
Jansen claims that Antoni engaged in quid pro quo harassment when, in response to her inquiries about the late filing of her work performance review, he stated, “It’s on my desk,” while he performed a lewd gesture. Under the factual scenario presented in Jansen, I cannot agree with Judge Flaum that Antoni’s alleged conduct is actionable as quid pro quo harassment. Flaum Op. at pp. 500, 503. The record reflects that Jansen was the secretary in the defendant company’s tooling services department, and she worked primarily for Antoni, the manager of the department. Antoni exercised a measure of control over Jansen’s working environment and was expected, as part of his duties, to contribute to the evaluation of the plaintiffs job performance. However, in his role as manager of the tooling services department, Antoni was not entrusted with the unilateral authority to hire or fire Jansen, nor was he the sole individual responsible for reviewing Jansen’s performance.21 Contrast Highlander v. KFC Nat’l Management Co., 805 F.2d 644, 648 (6th Cir.1986) (would only impose strict liability for quid pro quo harassment if supervisory employee had “plenary authority over hiring, advancement, dismissal, and discipline” of the plaintiff). Since Antoni did not have final authority over personnel matters affecting the plaintiff, there is at least a legitimate question as to whether he was even in a position to engage in quid pro quo harassment of Jansen. In other words, I *534seriously question whether he ought to be classified as a “supervisor,” and note again that we lack a clear definition of this crucial term to guide us in cases of quid pro quo sexual harassment.
Moreover, even assuming that Antoni could have subjected the plaintiff to quid pro quo harassment, the record is clear that he did not actually do so. Antoni never followed up his comment and/or gesture to the plaintiff with adverse job action, nor did Jansen ever comply with Antoni’s alleged unwelcome sexual advances. As the district court made clear in granting summary judgment in favor of PCA on the quid pro quo claim, Jansen did receive her performance review and was given a satisfactory rating as well as a raise in salary. Jansen argues (and Judge Wood agrees) that the three-month delay in receiving her review/raise was itself an adverse job consequence, Wood Op. at p. 579, but a short delay in receiving a review/raise represents such a de minimis economic loss that it cannot reasonably or properly be interpreted as a “materially adverse employment action.”22 Moreover, Jansen has failed to demonstrate a causal connection between her refusal to acquiesce in Antoni’s alleged advances and the delay in her performance review. As Jansen well knew, it certainly was not an unusual occurrence for PCA to fail to conduct personnel performance reviews in a timely fashion. In fact, delayed reviews were so common that the company had in place a policy of making pay raises retroactive to the date when the review was due to be filed. Jansen’s salary raise, although tardy, was made retroactive, in full accordance with this policy.
Jansen admitted, in her deposition testimony, that she neither acquiesced in Antoni’s alleged demands nor suffered any tangible, adverse job consequences because of her failure to do so. Although Judges Wood and Flaum now would both hold that a mere threat of quid pro quo action is actionable as quid pro quo harassment, they have failed to cite any case law (nor am I aware of any) that would allow Jansen to proceed under a quid pro quo theory solely on the basis of unfulfilled threats (or perceived threats). See Gary, 59 F.3d at 1396 (“[I]t takes more than saber rattling alone to impose quid pro quo liability upon an employer.”). One student of employment discrimination law has recently and properly summarized the law in this area, explaining that a quid pro quo claim:
requires that the victim either actually refuse the advances and suffer tangible job detriment or submit and retain a tangible job benefit. Quid pro quo theory appears not to encompass cases in which the supervisor threatens a job detriment but fails to carry through on his threat after the victim refuses to submit. There is thus no doctrine of attempted quid pro quo harassment; such unwelcome advances could only be challenged under the hostile work environment theory.
J. Hoult Verkerke, Notice Liability in Employment Discrimination Law, 81 Va. L. Rev. 273, 280 n. 15 (1995) (emphasis added).
Judge Flaum essentially maintains that there is a doctrine of “attempted quid pro quo harassment,” and argues that his position “has a toehold in the case law.” Flaum Op. at p. 499. He quotes language from three circuit court opinions for the proposition that a supervisor’s unfulfilled quid pro quo threat may be deemed quid pro quo harassment: Nichols v. Frank, 42 F.3d 503 (9th Cir.1994); Karibian v. Columbia Univ., 14 F.3d 773 (2d Cir.1994); and Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir.1987). All three of these cases involved facts far more egregious than those set forth in Jansen. The plaintiffs in Nichols and Karibian, unlike Jansen, alleged that they actually acquiesced in their supervisors’ demands for sexual favors in order that they might obtain or keep some kind of job-related benefit (in Nichols it was permission to take a leave of absence, in Karibian, the plaintiff maintained that her “raises, hours, autonomy and flexibility” were conditioned on her willingness to sleep with her supervisor). *535Sparks is also distinguishable from Jansen, for in Sparks the plaintiff alleged that she was discharged (a clear job-related detriment) “in retaliation for her refusal to accede to [her supervisor’s] sexual demands.” Id. at 1557.
I also find problematic Judge Flaum’s assertion that Antoni’s unfulfilled threat is actionable as quid pro quo harassment merely because it resulted (or allegedly resulted) in “real emotional strife” or “anxiety and distress” for the plaintiff.23 Flaum Op. at p. 500. Nor do I agree with Judge Diane Wood’s speculation that because a plaintiff may experience both types of sex discrimination at the same time, the distinctions between quid pro quo and hostile work environment harassment (by now well-recognized in Title VII law) are somehow meaningless. Wood Op. at p. 567. Statements of this kind only serve to further cloud the law of sexual harassment by casting a haze over the well-recognized boundaries between quid pro quo harassment and hostile work environment harassment. Like the experienced trial judge in Jansen, 895 F.Supp. at 1066, we should follow the established and well-recognized definition of quid pro quo harassment in disposing of Jansen’s claim, instead of merely assuming that there was a quid pro quo, or worse, twisting the definition of quid pro quo harassment to fit the facts of this particular ease.
I also wish to emphasize that however objectionable Antoni’s remark and gesture might have been, they do not, by themselves, rise to the level of actionable hostile work environment harassment as defined in our case law, for they did not “cross[ ] the line that separates vulgarity (not actionable) from harassment (potentially actionable).” Baskerville, 50 F.3d at 431. As this court has observed, “the concept of sexual harassment ... is not designed to purge the workplace of vulgarity.” Id. at 430. Unfortunately, we do not live in the most cultured, virtuous or well-mannered time in world history, so that even in the workplace a certain amount of “vulgar banter, tinged with sexual innuendo,” is inevitable today, particularly if one has the misfortune to work with “coarse or boorish” individuals who lack “refinement.” Id.
In addition to arguing that a quid pro quo existed in Jansen, Judges Flaum and Wood claim that Ellerth also involved quid pro quo harassment. However, I agree with Chief Judge Posner that “Ellerth[,] like Jansen[] is purely a hostile-environment case” and therefore must be analyzed under the negligence standard. Posner Op. at p. 516. The facts of Ellerth do not support the strained conclusion of my respected fellow Judges Flaum and Wood that quid pro quo harassment took place. Ellerth’s contact with Slowik (who was based in New York, more than 500 miles away) included telephone conversations with her superior approximately once a week. During two conversations in early May 1994, the following exchanges allegedly took place (as summarized by the district judge):
[W][hen Ellerth was talking to Slowik to get special permission to do something for a customer, Slowik said something along the lines of “I don’t have time for you right now, Kim, unless you’re telling me — unless you want to tell me what you are wearing.” Ellerth said she had to go and hung up. On a follow-up call, again to get permission, Slowik told Ellerth that she did not have permission for the project and he then said something along the lines of “are you wearing shorter skirts yet, Kim, be*536cause it would make your job a whole heck of a lot easier.”
Ellerth v. Burlington Industries, Inc., 912 F.Supp. 1101, 1108 (N.D.Ill.1996).
Judge Wood, making the case for the existence of a quid pro quo, argues that “Slowik ... refused to give [Ellerth] special permission for work projects until she described her physical appearance to him.” Wood Op. at p. 579. Referring to Slowik’s question about whether Ellerth was attired in a long or a short skirt, Judge Wood seemingly embellishes the facts by asserting that Slowik forced Ellerth “to play the role of sex object in order to obtain desirable work assignments.” Wood Op. at p. 579 (emphasis added). Once again, the definition of quid pro quo harassment is being stretched to fit the facts of this particular case. While asking a female employee to describe what she is wearing may be uncalled for and perhaps, if combined with other more egregious conduct, may give rise to a hostile work environment, such a comment is a far cry from asking a female employee to engage in sexual activity in order that she might keep her job or obtain a desired promotion. More importantly, Ellerth never did suffer an “adverse employment action” as a consequence of refusing to “play the role of sex object” (as Judge Wood refers to it). She was neither fired, denied a promotion,24 suffered a reduction in pay, nor did she lose a job title crucial to her advancement, much less was she transferred to another department with diminished responsibilities or fewer opportunities for promotion. Bryson, 96 F.3d at 916. Furthermore, Judge Wood has failed to persuade me that when Slowik denied Ellerth “special permission to do something for a customer,” he was making “desirable work assignments” (i.e., assignments that would allow Ellerth to advance at Burlington) contingent upon willingness to go along with his sexual banter. I believe that Judge Flaum’s and Judge Wood’s journey in pursuit of a quid pro quo (on these facts) resembles a search for a diamond in a wagonload of hay. While they claim to have discovered the diamond (i.e., a quid pro quo), I have combed the record and can find nothing but the hay.
Judge Kanne has brought to our attention an additional and most important point concerning the dangers of expanding the definition of quid pro quo harassment (to include mere threats). He notes, in his opinion, that “quid pro quo threats may be ambiguous, and if such threats make an employer strictly liable, plaintiffs will attempt to turn all instances of supervisor sexual harassment into ‘implied threats’ in order to take advantage of strict liability’s easier burden of proof.” Kanne Op. at p. 505. A better approach would be to hold, consistent with our precedent, that plaintiffs such as Jansen and El-lerth may not proceed under a quid pro quo theory unless they can establish that they have actually suffered a tangible, job-related loss (such as being fired or denied a promotion) for refusing to go along with the harasser’s sexual demands. Bryson, 96 F.3d at 916; Gary, 59 F.3d at 1396; Hicks, 833 F.2d at 1414.
Because our interpretations of congressional enactments such as Title VII are to serve as guideposts for the trial courts as well as for the legal profession as a whole (to say nothing of business and industry), it is crucial that we approach concepts such as quid pro quo harassment in a clear, logical fashion that adheres to precedent. The law of sexual harassment has become increasingly complex over the years, resulting in confusion and uncertainty as to what really constitutes sexual harassment in the eyes of the law. One observer has stated, without exaggeration, that “the web of sexual harassment [law] has truly become tangled in the mass of court opinions, agency guidelines, and law review articles on the subject.” King, Sex, Love Letters, and Vicious Rumors, 9 B.Y.U. J. Pub.L. 341, 365 n. 5 (1995). The boundaries between “harassment” and normal interaction between the sexes are now so blurred that a six year-old first-grade student in Lexington, North Carolina who kissed one of his female classmates (also a mere six years of age) on the cheek, found *537himself suspended from school recently for engaging in “unwarranted and unwelcome touching” (i.e., “sexual harassment”). See Linda Chavez, Feminist Kiss Patrol is on the March, USA Today, Oct. 2, 1996, at 15A (common sense ultimately prevailed and the school lifted the suspension).
Mindful of the need to strike a balance between the rights of employers and employees, I am unable to join either Judge Flaum or Wood on their theory of what constitutes actionable quid pro quo harassment. By molding the facts of these cases, and attempting to make them fit within a newly-elusive quid pro quo theory, my colleagues are attempting to obliterate the very definition of quid pro quo harassment. This approach, should it become the law of this Circuit, will register a “7.5” on the Richter scale and shall certainly upset the balance between the rights of employers and employees while, at the same time, adding to the existing uncertainty and confusion in this complex, controversial, ever-expanding, and troubling area of the law.
6. Judge Posner’s Approach to Employer Liability
Judge Posner has outlined a more limited approach to the question of employer liability, yet he still advocates — largely on policy grounds — that we venture part way into the realm of strict liability. He would only impose strict liability in a limited subset of quid pro quo eases, i.e., those where the supervisor successfully “us[es] his delegated authority to do a company act” as part of a quid pro quo; for example, by firing an employee, or denying a promotion/raise. Posner Op. at p. 512. Chief Judge Posner does not allow himself to fall into the trap of asserting, as do Judges Flaum and Wood, that a mere unfulfilled threat to take any of these actions is a sufficient basis for holding the company strictly liable. Posner Op. at p. 513. In fact, Judge Posner and I are in agreement that neither Jansen’s supervisor nor Ellerth’s engaged in a true quid pro quo, yet curiously Judge Posner theorizes at length as to why strict liability may be appropriate in some quid pro quo cases. Judge Posner apparently believes that if Jansen’s supervisor had successfully blocked Jansen’s promotion (because she refused to acquiesce in his sexual overtures), it would be proper to hold PCA strictly liable. I obviously agree with Judge Posner’s rationale that the employer, knowing he is subject to strict liability, will have more of an incentive to monitor “very carefully” the personnel decisions of all of its supervisory employees. However, my colleague has failed to persuade me that this monitoring “should be relatively easy to do,” or that it will bring about an effective system for the review and control of supervisory actions taken in the exercise of “delegated authority.” Posner Op. at p. 512.
Initially, I wish to re-iterate that I am in agreement with Judge Posner that the questions before us are matters of federal common law and not state law. However, I do not agree with the Chief Judge that we are free to ignore traditional common law principles and “create” our own set of agency principles, guided solely by our personal views of what is sound policy in this area. Posner Op. at p. 510. Judge Posner refers to the common law principles set forth in the American Law Institute’s Restatement (Second) of Agency as “antiquated screed,” and throughout his opinion he relies heavily on policy arguments rather than on precedent. While I appreciate and always respect the Chief Judge’s candor about his preferred approach, with all due respect, I submit that his method is inconsistent with our role as judges, and with the Supreme Court’s directive in Meritor that we “look to agency principles” in this area (the Court even cited the Restatement as a source for such principles).
As noted at the outset, strict liability is based upon a policy judgment concerning the proper allocation of costs among various parties in society. At times, this court at times is called upon to exercise a policy-making function, especially when a federal statute is unclear or even silent as to a question of legal and social significance. As we fill the gaps in a federal statutory scheme such as Title VII, however, we should keep in mind the words of our distinguished colleague, Judge Jesse Eschbach, that we are “[w]riting ... on the shores of Lake Michigan rather than *538the banks of the Potomac....” Vail v. Board of Education, 706 F.2d 1435, 1445 (7th Cir.1983) (Eschbach, J., concurring). In exercising our very limited and circumscribed policy-making role, we must proceed with caution, and not lose sight of the fact that we are bound by the Constitution and by legal precedent. Above all, we must respect the doctrine of separation of powers, which is “essential to the preservation of liberty.” Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 659, 102 L.Ed.2d 714 (1989). Under this doctrine, lawmaking authority is assigned to the elected branches of Government:
The Constitution wisely vests [the legislative] branch of the government with the power and authority of law-making, for the legislature is better equipped to carry out that task in that interested parties ... are able to present their respective positions before the legislative body in a more open, unrestricted, informal forum. Thereafter, the myriad of questions and problems, as well as their possible solutions, are brought before the entire legislative branch of government and are subject to the scrutiny of public hearings and debates.
Curtis v. Thompson, 840 F.2d 1291, 1305 (7th Cir.1988).
We should also remember that there are certain practical limitations on our capacity to address complex social problems. As Chesterfield Smith, a distinguished former president of the American Bar Association, once observed:
[Cjourts are being asked today to solve problems for which they are not institutionally equipped, or at least not as well equipped as other areas of government [such as the legislature].
As far as possible, judicial forums should be reserved for doing only that which cannot be done elsewhere.
The American public perceives the courts as a jack-of-all trades available to furnish the answers to whatever may trouble them. Shall a war be prosecuted or peace made? What is life, or when does death begin? Shall racial integration be achieved by ... busing of children to far away schools? How shall prisons and mental institutions be operated? Shall nuclear power plants be built, and if so, where? Shall the Concorde fly to these shores? Is affirmative action really inverse discrimination? Shall the snail-darter survive? [Should employers be held strictly liable for acts of sexual harassment by supervisors?] ...
The courts properly should be only the conflict-resolvers and not the problem-solvers of American society.
Wangen v. Ford Motor Co., 97 Wis.2d 260, 324, 294 N.W.2d 437 (1980) (Coffey, J., dissenting) (refusing to join “judicial legislation” that would permit recovery of punitive damages in strict liability actions involving allegedly defective products). A decision issued by a panel of judges is at best a poor substitute for legislation enacted by a majority of the 100 Senators and 435 Representatives in the United States Senate and House respectively, after full hearings and debate, and signed into law by the President. The Congress, unlike this court, can act “with the benefit of citizen input ... [and] a trained staff to search out, weigh, balance, and comprehend” the far-reaching economic consequences of policy decisions of this nature. Id. at 324, 294 N.W.2d 437. “It is presumptuous for this court, which does not and cannot have the benefit of public hearings and constituent expression of opinion, to commend sua sponte any specific change [in legislation],” such as expanding Title VII to make employers strictly liable. Id. at 325, 294 N.W.2d 437 (quotation omitted). “If social welfare experimentation is to be conducted, it should be done by the legislature. The implications for the free enterprise system, and therefore the structure of our economy, are too disturbing to leave a decision of this magnitude to [a panel of] jurists.” Id. at 331, 294 N.W.2d 437. As this court recognized in Curtis v. Thompson:
the fact-finding and policy-making capabilities of a court of law are far more limited and confined [than those of the legislature] due to the very being of a court of law, enshrined with its technical rules of evidence as to admissibility and materiality that often serve to limit a court’s ability to *539make a clear, definitive, and thus reasoned pronouncement on matters of public policy.
840 F.2d at 1305. In carrying out our policy-making role, therefore, it is imperative that we “exercise [our] powers of review and decision making with discretion and reservation, giving due deference to the other branches of government.” Id. Until Congress or the Supreme Court addresses more definitively the issue of employer liability under Title VII, we should approach the question cautiously, and not attempt to take the law beyond both the terms of the statute and existing case law by adopting a far-reaching standard of strict liability.
Judge Posner points out, and I agree, that the costs associated with a strict liability standard will ultimately and sadly be borne not only by the workers but also by the consumers, Posner Op. at p. 511; see also Excuse Factory, supra, at 296 (“workers can be expected to shoulder the bulk of the costs of a right to sue over things that go wrong in the workplace.”). Nevertheless, having pointed out these costs, Judge Posner fails to take them into consideration when he proposes a strict liability standard that would mandate a highly centralized, potentially limitless, and expensive system for “supervising the supervisors.” This system would require employers and CEOs to review any and all personnel and advancement related decisions with a jaundiced eye to. ensure that they were not based on impermissible criteria. This kind of “monitoring” will not be “easy” in all (or even most) business settings. In fact, I am at a loss to understand how the CEO of any sizable company can be expected to monitor “very carefully” the personnel decisions of all of his company’s supervisory employees, much less ascertain the subjective intentions lying behind them. I am also doubtful that supervision and training will succeed in eliminating the problem of workplace sexual harassment, whose origins are in social attitudes and beliefs that develop long before most people are old enough to draw their first paycheck.
Even if I were to agree with Judge Posner that multi-layered scrutiny of supervisory employees would prove workable in curtailing sexual harassment, this court is in no position to dictate management procedures for private businesses, nor should it impose costly legal requirements on these firms merely because we may individually be convinced that they are good policy. We judges are not “jacks of all trades,” Wangen, 97 Wis.2d at 324, 294 N.W.2d 437, much less sufficiently trained or experienced to be classified as experts on business management. Nor, as far as I am aware, have any of us successfully completed an M.B.A. program at a school of higher learning. We should refrain from tackling policy issues that lie beyond our province. Indeed, the Supreme Court has cautioned that “[c]ourts are generally less competent than employers to restructure business practices” and that “consequently, the judiciary should proceed with care before mandating that an employer must adopt” a particular business practice. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 661, 109 S.Ct. 2115, 2127, 104 L.Ed.2d 733 (1989) (superseded in other respects by the Civil Rights Act of 1991, Pub.L. No. 102-166 § 3, 105 Stat. 1071 (1991)). When an employer delegates the making of personnel decisions to its supervisors, and when the supervisor abuses that authority by engaging in quid pro quo harassment, fairness dictates that the employer should be judged in terms of what it knew about the supervisor at the time it delegated authority, and whether, in light of that knowledge, the delegation of authority was reasonable (i.e., negligence standard). Requiring more from industry (i.e., multi-layered bureaucratic structures to “monitor” supervisory employees “very carefully”) ignores the realities and complexities of the modern business world and imposes an unreasonable and unworkable burden on employers.
D. Additional Concerns with Strict Liability
I am forced to disagree with our Chief Judge that expanding employer liability for sexual harassment represents but a “relatively esoteric and marginal change in the law.” Posner Op. at p. 514. Making the employer strictly liable for the actions of an uncouth supervisor, without regard for any safeguards the employer may have put in *540place to prevent or deal with the harassment, will have deep and lasting consequences. The long-term problems that will result from a strict liability standard, in my view, far outweigh the dubious alleged gains associated with such a new and far-reaching standard. First of all, a strict liability standard will affect each and every facet of personnel decision-making, including, but not limited to, hiring, firing, and the employee review process, possibly bringing about a fundamental re-orientation of the employer-employee relationship. It will also have the effect of “chilling” social interaction in the workplace. Judge Posner notes, and I agree, that “romantic encounters, including romantic encounters between supervisors and supervised, are a fact of the workplace” and indeed, “[m]any happy marriages have grown out of such encounters.” Posner Op. at p. 513. Today, however, as a result of the “constantly shifting” rules created by “evolving court opinions,” the workplace is being transformed into “a nervous nest where people are afraid to say what they think and express honest emotions.” Vincent J. Schodolski, Harassment Suits Curb Workplace Free Speech, Chi. Trib., June 23, 1997, at 1.
The detrimental impact of a strict liability standard will, by no means, be limited to social interaction in the workplace. We should consider, as an initial matter, the ramifications of strict employer liability for the federal judicial system, of which this court is an integral part. As a respected colleague of ours on the federal bench recently observed, “the federal courts are flooded with employment eases. We are becoming personnel czars of virtually every one of this nation’s public and private institutions. The drafters of [Title VII] could never have intended the resulting consequences from what they deemed to be necessary, progressive legislation.” Tschappat v. Reich, 957 F.Supp. 297, 299 (D.D.C.) (1997) (Sporkin, J.). Not surprisingly, since Congress amended Title VII in 1991 to permit the recovery of punitive damages (albeit only under limited circumstances),25 the number of employment cases filed in federal court has jumped from 10,771 (1992) to 23,152 (1996). Robert J. Samuelson, The Limits of the Law, Newsweek, Jun. 30, 1997, at 50. We should not kid ourselves: the adoption of strict liability by judicial fiat will likewise increase the volume of Title VII litigation and strain the resources of our already over-burdened federal court system. In recent years, Congress (in addition to legislating new civil causes of action) has created a significant number of new federal crimes, without conducting judicial impact studies to determine how such legislation will affect the justice system. See Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings L.J. 1135 (1995). As Chief Justice Rehnquist has observed:
[I]n talking about the future of the federal courts, we must understand that Congress probably will continue to enact new legislation that provides new causes of action for litigants on the civil side of the docket and new federal crimes to be prosecuted on the criminal side of the docket. It is the federal district courts and the courts of appeals that are being hit hardest by this ever-increasing wave of litigation.... With the district courts, it is largely a question of having enough judicial manpower to adjudicate the incoming cases. The same is true to a large extent of the courts of appeals....
*541Keynote Address of Chief Justice William H. Rehnquist, Symposium: The Future of the Federal Courts (April 9, 1996), reprinted, in 46 Am. U.L.Rev. 263, 265 (1996). In light of these developments, I am amazed that we would even consider expanding Title VII in a manner that will undoubtedly add to the already burdensome number of sexual harassment lawsuits that are brought before the trial courts and appealed to our own court.
The adoption of strict liability could also have significant, even worldwide, economic consequences, for it exposes American industry to a greater amount of Title VII litigation and thus adversely affects American business as it attempts to compete in an ever-expanding global marketplace. I join with thousands of American citizens who are of the opinion that employers today are over-regulated and saddled with an increasingly burdensome, indeed an overwhelming, amount of litigation, including Title VII litigation (much of which, as we realize, often is without merit). See Chrys A. Martin, Special Considerations in Sexual Harassment Claims, Federal Lawyer, Jul. 1996, at 35 (“Employment litigation is on the rise, particularly that involving claims of sexual harassment.”). Indeed, the rising tide of employment-related litigation has prompted many firms to require — as a condition of employment — that employees agree to accept arbitration and forego their right to sue in court over employment-related disputes. Leslie Kaufman & Anne Underwood, Sign or Hit the Street, Newsweek, June 30, 1997, at 48.26
The clarion call of the social engineers of our day seems to be that courts should eradicate sexual harassment with instantaneous action and force employers to “pay the price” for alleged sexual misconduct through the imposition of a strict liability standard, whether or not they were even aware of such conduct. That clarion call may, in fact, be more akin to the first chime of the death knell for more and more American businesses and workers on this side of the globe. Unfortunately, we have been going down this road for some thirty years, as the ongoing project of contingency-fee lawyers has been to expand strict liability for deep-pocket defendants whenever possible. The expansion of products liability and punitive damages law has resulted in a windfall for contingency-fee lawyers who specialize in challenging deep-pocket corporate defendants, with the use of allegedly qualified “experts” who, in truth, courts have often found to be less than reliable, if not purveyors of so-called “junk science.” All of this has created a tumultuous environment for American business, which is attempting to find its niche and compete in the global marketplace (thus generating American jobs) hampered by this albatross of court-created confusion over the scope of tort liability. See, e.g., Walter K. Olson, The Litigation Explosion (1991).
Through ill-advised decisions and judgments, our courts, egged on by activist groups, have created an almost hostile environment for business by permitting the recovery of crippling punitive damage awards and over-expanding doctrines such as strict liability for manufacturers of allegedly defective products. See, e.g., Wangen, discussed supra. In response to the general trend of making corporate “deep pockets” strictly liable (often for large punitive awards), many businesses have moved their operations (and many American jobs) out of the country (e.g., to Mexico) or even overseas,27 while others have been forced to close their doors or even *542file for bankruptcy protection.28 It is also well-documented that the added costs of insuring and defending against these lawsuits are passed along to the consumer. As noted recently by former United States Attorney General Richard Thornburgh, the “lawsuit tax” represents approximately $100 of the cost of a $200 football helmet, $20 of the cost of a $100 stepladder, $3,000 of the cost of a heart pacemaker, more than two-thirds of the cost of a childhood DPT vaccine, and as much as $500 of the cost associated with an average two-day maternity stay in the hospital. Richard Thornburgh, Lawsuit Loopiness: Congress, Lawyers Square Off Over Legal Reform, Harrisburg Patriot & Evening News, Dec. 28, 1995, at A11.
Numerous state legislatures have taken action to resolve the problems that have arisen since the establishment of punitive damages liability and its developing case law. The growing number of abusive and overzealous punitive damage awards — and the courts’ reluctance to deal with the same— have prompted legislative reform efforts in states across the country. 1 Ghiardi & Kircher, Punitive Damages: Law & Practice § 6.36 (1997). Four states, Oregon, Georgia, Connecticut, and New Jersey, have enacted product liability statutes dealing specifically with the problem of burgeoning punitive damage awards. Id. at § 6.38. These four states have implemented a variety of strategies to deal with the problem, including the raising of standards for establishing liability, increasing the burdens of proof, and setting fault specific criteria to be considered in determining the size of awards. Id. On the other hand, the states of California, Colorado, Minnesota, Nevada, North Dakota, South Dakota, and Virginia, also in an attempt to address the issue, have enacted punitive damage statutes which likewise apply to products liability. Id. Many of these statutes contain elements of the Uniform Products Liability Act (UPLA), model legislation drafted by the Federal Interagency Department, while others have instituted caps on punitive awards. Id.29 Still other states, either by statute or by common-law, have seen fit to prohibit or sharply limit the recovery of punitive damages altogether.30
Concern over the adverse impact of large punitive awards has even prompted national efforts at reform. In 1996, for example, both houses of Congress passed the “Common Sense Product Liability Reform Act, ” which would, inter alia, have capped the punitive damages that a jury could award in cases involving faulty products. H.R. 956, 104th Cong. (2d Sess.). Although this reform legislation was vigorously opposed by the National Trial Lawyer’s Association and eventually vetoed by the President, it nevertheless sent a strong message that a majority of Americans are very concerned about runaway judicial decisions in the products liability area, and the impact such decisions have on business, workers, and consumers. Wall St. J., May 3, 1996 at B11.31
*543Court-created liability in the area of medical malpractice (as in the products context) has served to increase dramatically both the size and frequency of malpractice awards and settlements, which in turn has driven up the cost of malpractice insurance premiums and contributed to the undesirable practice of “defensive medicine” fie., performing tests and procedures that are not medically necessary in order to safeguard against liability). See Theodore R. LeBlang, Medical Malpractice and Physician Accountability: Trends in the Courts and Legislative Responses, 3 Annals Health L. 105 (1994) (discussing recent judicial decisions that have broadened liability for malpractice, as well as the costs associated with expanded liability). I agree that a physician whose carelessness or mistake has caused injury should be held accountable under the law, and that justice requires that the victim be compensated. However, courts today are going well beyond such basic principles of traditional tort law. To cite but one example, it is increasingly common for the courts to permit' a medical malpractice plaintiff to rely upon the doctrine of res ipsa loquitur in proving physician negligence, which, according to one critic, is nothing more than a “means of transforming the tort regime from a fault-based system to one of strict liability.” Karyn K. Ablin, Res Ipsa Loquitur and Expert Opinion Evidence in Medical Malpractice Cases: Strange Bedfellows, 82 Va. L.Rev. 325 (1996) (emphasis added). Broad, judicially-created liability for malpractice, combined with the tremendous amount of paper-shuffling that is now required of doctors in order to satisfy mounting government regulations and requirements, has driven up the cost of healthcare and prompted many physicians to leave the practice. And, once again, who has suffered: the patient-consumer. Entangled in a legal morass created largely by ill-advised court arid jury decisions, our nation’s healthcare industry is now controlled from the insurance boardroom rather than the caregiver’s office, and it is the patient who suffers under our “revolving-door” system of medical care (e.g., by being released early from the hospital as a cost-cutting measure). As with punitive damages in the products liability context, there has been a vigorous legislative response to skyrocketing malpractice awards in the form of statutory caps on non-economic damages in many states.32
Just as the ill-advised expansion of the law in the aforementioned areas has worked to the detriment of the average American citizen, so too will the expansion of employer liability in the Title VII context. By ignoring the Supreme Court’s decision in Meritor and embarking on an ambitious judicial project to expand employer liability, we add to the already-onerous legal and regulatory burdens on American business, and send a message to employers that they will hereafter be considered as second-class citizens, whose “guilt” with respect to sexual harassment may henceforth be presumed, without even so much as a showing of knowledge much less fault. If history is any guide, many American businesses will respond to these developments by boosting prices for goods and services, or by transferring and re-locating their manufacturing operations across the waters, perhaps to countries in Asia or Central America where regulatory restrictions and the level of litigation generally are not as burdensome as in America. Or a firm might also choose to offset the increased costs associated with expanded Title VII liability by laying off workers and/or relying more upon machines and computers to do their jobs. One of my fellow judges even goes so far as to brush aside concerns about these potentially back-breaking costs, believing that costly prevention efforts will represent a corporate “investment in long-term freedom from liability.” Flaum Op. at p. 499. However, as Judge Posner cogently explains, that “investment” is essentially a form of taxation that will be borne, not just *544by faceless corporate entities, but by all in society:
A law that requires the employer to do more than is feasible to control harassment will impose costs without creating deterrent benefits. In the long run, these costs will be borne largely by consumers, in the form of higher prices for the employer’s product, and toorkers, in the form of lower wages (because the higher costs are labor costs). Many consumers and workers are women, so women, who are the principal victims of sexual harassment, will pay a big part of the costs that employers incur as a consequence of excessively harsh principles of employers liability.
Posner Op. at p. 511.
I agree that eliminating sexual harassment in the workplace is a worthy and commendable goal, but we must not live under the misapprehension that strict liability will somehow bring about a Utopian workplace, free of sexual harassment. Given their existing liability for negligence, employers already have an incentive to eliminate harassment, to say nothing of the fact that they might wish to eliminate such conduct for reasons independent of their potential liability under Title VII (e.g., because harassment is disruptive of the workplace and thus undermines productivity). Judges Posner and Flaum assume that strict liability will result in greater deterrence, but they fail to explain how this will happen. They effectively distill their argument into a cost-benefit analysis— that is, but for strict liability in quid pro quo cases, employers would presumptively prefer to incur the occasional cost of Title VII litigation rather than institute expensive measures to foster a “harassment-free” working environment. I am forced to disagree with this speculative theorizing, which is barren of support in empirical data.
In my view, the imposition of strict liability in the employment discrimination context represents a new and unwarranted extension of the doctrine of strict liability. The kind of cost-benefit reasoning that perhaps justifies strict liability for manufacturers of defective or faulty products is not convincing when applied to the employment arena. The manufacturer of a defective product may, and oftentimes does, profit from the sale of that product. When it does so profit, it should be held strictly liable once it establishes thát a pre-determined fault or defect has caused harm. But obviously there is no gain to an employer when one of his supervisory employees engages in the sexual harassment of another employee.
In the products liability area, the imposition of strict liability is meant to impact on the economic decisions that manufacturers make about cold, tangible products made of metal, steel, iron, plastic and rubber, for “a manufacturer can anticipate certain hazards and ‘guard against their recurrence’ in a way that consumers cannot; similarly, consumers cannot investigate the ‘soundness’ of products.” Marshall S. Shapo, 1 The Law of Products Liability § 7.05[4] (3d ed.1994). Manufactured products can be measured, analyzed, and tested by the manufacturer, and when a defect is identified, it can be remedied by replacing a dangerous machine or part with an improved or new design that is safer. The human “defects” in employees, by contrast, are largely hidden, elusive, and lie beyond the effective control of the employer. Only with great difficulty (if at all) can an employer measure and detect the human element that is “defective,” i.e., the thoughts, feelings, and behavior of its employees or potential employees. Obviously, these “defects” are less susceptible to correction or “fixing” by the employer than is the case with defective products. Although Judge Posner argues that strict liability will result in “very careful” “monitoring” of supervisory employees, and thus a reduction in the amount of harassment in the workplace, I question whether such monitoring is feasible. Human behavior is influenced by myriad factors that lie hidden below the surface— beyond the reach of even today’s surveillance cameras and x-ray machines. These factors include one’s upbringing, moral beliefs, heredity, and environment. Additionally, as medical science is now discovering, the ebb and flow of chemicals within the human body (e.g., hormones and neurotransmitters) can and do profoundly affect behavior, sometimes resulting in depression, anxiety, and even antisocial acts such as sexual harass-*545merit. Substance abuse, which often goes undetected in the workplace, can upset the normal chemical balance unthin the kuman body, ofttimes contributes to behavior that is inappropriate, immoral, or even criminal in nature. Without prying deeply into the personal lives of its employees or potential employees, how is an employer supposed to have knowledge of, much less remedy, all of the factors that could possibly contribute to an employee’s decision to engage in sexual harassment?
It is interesting to note that even under the existing negligence regime, an employer’s attempts to avert liability by identifying and “weeding out” potential harassers in the workforce are often frustrated by state employment laws, which can interfere with the employer’s ability to assess whether an individual is predisposed to engage in harassment (or other unlawful conduct). Following a ease in which one supermarket employee was raped by another, a women’s rights activist in Boston, Massachusetts (affiliated with a national organization) reportedly called for employers “to investigate the backgrounds of employees more thoroughly,” opining that “[i]f an employer is not going to look out for the safety of employees, who is?” Walter Olson, “How Employers Are Forced to Hire Murderers and Other Felons,” Wall St. J., June 18, 1997 at A23. Ironically, however, the kind of background investigation that might serve to protect other employees (and members of the public) is often prohibited by law, and can lead to the employer being sued for employment discrimination. Wisconsin law, for example, generally forbids an employer from asking job applicants or employees whether they have an arrest record. Wis. Stat. Ann. §§ 111.381, 111.32, and 111.335.33 Nor may a Wisconsin business deny employment to an individual because of a prior criminal conviction, unless the circumstances of the offense “substantially relate to the circumstances of the particular job.” Wis. Stat. Ann. § 111.335.34 Whether an employee or prospective employee has a past arrest or conviction for, let us say, sexual assault, would be highly relevant to the individual’s inclination to engage in sexual harassment or even rape, but in most instances such information is off limits to Wisconsin employers. Illinois, similarly, does not permit employers to use arrest information in making employment decisions. 775 ILCS 5/2-103.35 If strict liability is adopted as the standard in Title VII sexual harassment cases, the restrictions that bind employers in any states with laws similar to those of Wisconsin and Illinois will only be made more pronounced. Walter Olson, the author of a recent book aptly titled The Excuse Factory: How Employment Law is Paralyzing the American Economy (Free Press 1997), has described this bind or dilemma as yet another example of the “sued-if-you-do, sued-if-you-don’t regime we impose on ... business.” Olson, “How Employers Are Forced to Hire Murderers,” Wall St. J., June 18, 1997 at A23. In the context of employer liability for sexual harassment, I ask: “Why should courts search for ways to tighten the noose around employers’ necks (i.e., strict liability), and thus further ‘paralyze’ the American economy?”
We should recognize that “[m]en do not discard their personal qualities when they go to work,” Hartford Accident & Indem. Co. v. Cardillo, 112 F.2d 11, 15 (D.C.Cir.1940), and that the vexing social problem of sexual harassment will very likely persist in the *546workplace, to some degree, regardless of the fact that an individual enterprise may devote considerable resources to its eradication. An individual’s disposition to sexually harass, despite years of educational programs promoting gender sensitivity, as well as public awareness and the condemnation of harassment, is engendered in him long before he enters the workforce (indeed, our armed forces are currently struggling with this very problem, and finding it most difficult to root out deeply-seated social attitudes, despite their best efforts). Is it fair and equitable that we require business and industry (and their stockholders) to automatically bear the costs of remedying one of the more troublesome social problems of the present day; a problem that business and industry did not create, and that society as a whole has been unable to solve, notwithstanding tremendous effort for these many years? If any governmental body should adopt new law that would dramatically affect human interaction in the workplace, it should be Congress, which could act with the benefit of expert testimony, whether it be from human resource directors, social workers, psychologists, psychiatrists, or others with knowledge and experience in the behavioral sciences. New departures in the law of sexual harassment — if any — must be left to the thorough deliberation, study, hearings and decision of the legislative body, and not resolved by judicial fiat.
An employer should be held liable for true sexual harassment in the workplace if the employer had prior knowledge of the alleged harassment and failed to take appropriate and timely measures. However, in our litigious society, I fail to understand how this court can justify expanding sexual harassment liability beyond the traditional, tested, true, logical, and common-sense parameters of the negligence standard. Courts setting Title VII standards must pi’oceed with caution and, above all, attempt to strike a balance between the rights, duties and obligations of employers and employees. Under a regime of strict liability, the unreported acts (or alleged acts) of even the lowliest supervisor would give rise to automatic liability for the employer. While the negligence standard is flexible and attempts to gauge the reasonableness of an employer’s actions in a given set of factual circumstances, strict liability is a blunt legal instrument (a sledgehammer, if you will) that sexual harassment plaintiffs will wield to bludgeon employers for the improper conduct of them supervisory employees regardless of the circumstances. Delivering such a gift-wrapped weapon to Title VII plaintiffs would undoubtedly tip the very delicate balance of the scales of justice in favor of Title VII plaintiffs and against employers. Strict liability, in the context as set forth herein, amounts to overkill and fails to strike the balance we are obligated to continually strive to achieve if American industry and our never-ending search for justice are to co-exist and endure.
Strict liability in sexual harassment cases could -also spill over into other Title VII contexts. For example, as the law in this Circuit currently stands, hostile work environment claims for harassment on the basis of race are analyzed pursuant to a negligence standard. See Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir.1991) (“Plaintiff must be able to prove that the employer knew or should have known of the harassment and failed to take prompt remedial action. ”). Insofar as Judge Wood explains that “[s]exual harassment is no different ... than other forms of discrimination,” Wood Op. at p. 573, it is only a matter of time before we are implored to cast aside Daniels’ negligence standard in favor of strict liability for racial harassment, so that businesses will be made to pay a price when racism rears its ugly and uncontrolled head in the workplace, unbeknownst to the employer, or perhaps in spite of the employer’s best efforts to eliminate racism from the workplace.
I am of the opinion that in fairness to the American worker, consumer, and employer, we should reject the strict liability theories proposed by Judges Posner, Flaum, Easterbrook and Wood and hold employers liable in cases of true sexual harassment if and only when they knew or should have known of the harassment and failed to take proper remedial measures. In the employment context, liability should be based on fault, and the flexible negligence standard should be *547used, to determine an employer’s legal responsibility in Title VII sexual harassment cases, regardless of who allegedly engages in the harassment (supervisor vs. co-worker) or what type of harassment allegedly occurs (iquid pro quo vs. hostile work environment). I fear that the approach advocated by some of my esteemed fellow judges will open the door to further interpretive problems and leave the law of sexual harassment even more inconsistent, complicated, and difficult to follow than it is today (indeed, speaking as a former trial judge, I question how trial judges will ever be able to make sense of and apply our disparate holdings in this en banc decision).
E. Negligence Standard Applied
Jansen has introduced sufficient evidence of PCA’s possible negligence in failing to protect Jansen from sexual harassment to warrant a trial on this issue, and summary judgment in favor of PCA should be reversed so that there can be a limited jury determination on the negligence question. As Judge Posner points out, the company did counsel Antoni about sexual harassment on at least two occasions prior to the alleged incidents involving Jansen. A jury will have to consider and weigh all of the facts and circumstances pertaining to PCA’s alleged negligence, and a rational finder of fact could very well conclude, on the basis of the evidence in the record, that the company was on notice concerning Antoni’s behavior and that its remedial measures (counseling) failed to prevent the problem from recurring in Jansen’s case.
I i’eaeh the opposite conclusion with respect to Ellerth’s case. As an initial matter, I concur with Judge Posner that Ellerth has waived her negligence claim, for Ellerth conceded, in her reply brief to the petition for rehearing, that § 219(2)(b) (negligence) “does not apply to this case.” Posner Op. at p. 517. But even assuming that Ellerth’s negligence claim has not been waived, summary judgment in favor of Burlington was proper and should be affirmed for the simple reason that the employer had no knowledge of the alleged harassment and was therefore not negligent. Judge Wood writes (and Judge Flaum agrees) that Ellerth’s communications to “a number of Burlington employees” were somehow “sufficient to put the company on notice of the problem [with Slowik].” Wood Op. at p. 580. I disagree. Burlington’s sexual harassment policy, which Ellerth received and read as part of the company’s employee handbook, stated that the company would “not tolerate any form of sexual harassment in the workplace” and specifically directed employees to report their concerns about harassment to either (a) their supervisor or (b) the human resources department. Additionally, the employee handbook set forth the company’s “open door” policy, which stated that if employees had concerns they did not feel comfortable discussing with their supervisors, they should raise those concerns with the human resources department.36 Although Ellerth claims to have mentioned her problems with Slowik to some co-workers, and to a manager in another division of the company, she admits that none of these individuals were her superiors at Burlington. In short, Ellerth failed to follow the procedures outlined in Burlington’s sexual harassment policy by reporting Slowik’s conduct to anyone at Burlington who was authorized to deal with such concerns, or to anyone designated to deal with such complaints by the sexual harassment policy. She failed to contact either (a) her immediate supervisor (Lawrence) or (b) the Human Resources Department. I agree wholeheartedly with Judge Posner that with rights should come responsibilities, including, in Ellerth’s case, the responsibility “to complain about Slowik through proper channels,” i.e., by using the procedures spelled out in the company’s published policy against sexual harassment. Posner Op. at pp. 516-517.
• Allegedly, Slowik told a number of off-color jokes (surprisingly, Ellerth cannot recall the content of even one of them) and *548allegedly made comments about Ellerth’s legs, all in the presence of a Vice President of Burlington at a business luncheon. However, even assuming that these allegations are true, they are insufficient to establish that the company was on notice of sexual harassment, for, as Judge Posner notes, “the vice-president had no reason to think Ellerth offended by Slowik’s banter; not all women would be.” Posner Op. at p. 516. Indeed, one has to question whether Ellerth found the jokes offensive, for she cannot recall the content of even one of them.
II. JANSEN & “APPARENT AUTHORITY”
The discussion of Jansen’s “apparent authority” claim in the Court’s per curiam opinion and in the separate opinions of my fellow judges37 fails to provide adequate guidance to judges (including the trial judge on remand), lawyers, and affected parties. Although both Judge Wood and Judge Flaum discuss “apparent authority” in the abstract, it is unclear whether they conclude that Jansen has come forward with evidence sufficient to survive summary judgment on this theory. On the other hand, from my reading of the record, I am convinced that Jansen has failed to meet her burden of demonstrating that PCA, through its acts and omissions, created an appearance that Antoni was authorized to engage in acts of sexual harassment.
Apparent authority is “such authority as a principal intentionally or by want of ordinary care causes or allows [a] third person to believe that [his] agent possesses.” Black’s Law Dictionary 96 (6th ed.1991) (citations omitted); see also Restatement (2d) Agency § 219(2)(d). As Judge Flaum correctly notes, “apparent authority exists only ‘to the extent that it is reasonable for the third person dealing with the agent to believe that the agent is authorized’ and the third person actually believes the agent to be authorized.” Flaum Op. at p. 500 (quoting Restatement (2d) Agency § 8 cmt. c)(emphasis added). When analyzing an apparent authority claim, the proper focus must be on the perceptions of the third party (in this case the plaintiff Jansen) and whether those perceptions were reasonable. One scholar has observed that “[i]n the sexual harassment context, the principal’s actions must have given the victim a reasonable belief that the perpetrator of the harassment had authority to harass. For this reason, apparent authority seems an unlikely basis for employer sexual harassment liability.” Phillips, Employer Sexual Harassment Liability, 44 Vand. L. Rev. at 1247-48.
Judge Wood eo-mingles her discussion of “apparent authority,” a concept set forth in Restatement § 219(2)(d), with her analysis of vicarious liability under § 219(1). Moreover, Judge Wood’s interpretation of “apparent authority,” like her analysis of respondeat superior liability, is far too broad. According to Judge Wood, who again reaches out to expand those concepts set forth in the Restatement, we should not ask whether the supervisor had apparent authority to harass, but whether he had the apparent authority to “hire, assign, supervise, etc.” Wood Op. at p. 575. If the supervisor appeared to have such authority and engaged in harassment, then according to Judge Wood, “liability [for the employer] should result.” Wood Op. at p. 575. It seems to me that the question Judge Wood would have a jury answer is far too broad, for the mere fact that an employee occupies a supervisory role, albeit perhaps even a very limited one, to some degree does not suffice to establish liability under an “apparent authority” theory. Rather, as the trial judge in Jansen explained:
liability is based upon the fact that the agent’s position facilitates the consummation of the [tort], in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him.
Jansen, 895 F.Supp. at 1066 (quoting Restatement (2d) Agency § 261 cmt. a) (emphasis added).
I have been unable to discover any evidence in the Jansen record from which a *549rational jury could conclude that Antoni, however improper his conduct might have been, “appear[ed] to be acting in the ordinary course of ... business” when he allegedly engaged in the acts of sexual harassment. Jansen claims that she was aware of various unsubstantiated rumors to the effect that: (1) Vicki Wiley left PCA because Antoni had “give[n][her] a hard time”; and (2) PCA tolerated workplace affairs and possibly even sexual liaisons (including one or two that supposedly involved Antoni), on the premises. Mere office gossip and banter falls far short of establishing that PCA either condoned or licensed sexual harassment, nor would unsubstantiated rumors permit a reasonable person to conclude that such harassment was part of the “ordinary course of business” at PCA. Although the plaintiff self-servingly claims that she was unaware of PCA’s sexual harassment policy, the deposition testimony of Henry Weil (Director of Operations) and Antoni makes clear that the policy was posted conspicuously in at least one, if not two, locations prior to Jansen’s complaint, including a bulletin board on the first floor near the entrance to the plant, which Jansen admitted passing “every single day.” PCA’s policy — which was explicit, detailed, in writing, and posted where employees could see it — made clear that harassment would not be tolerated at PCA and encouraged employees to report any and all instances of such harassment to “appropriate management.” A rational jury, on the basis of this record, could not find that PCA failed to post its anti-harassment policy conspicuously enough, nor could it conclude that the plaintiff had a reasonable belief that PCA authorized, condoned, or sanctioned sexual harassment. Therefore, although I see merit in allowing Jansen’s negligence claim to go forward, I do not believe that her “apparent authority” claim should proceed to trial because the facts of her ease are plainly insufficient to support such a claim.
As the experienced trial judge recognized, the weak evidence adduced by the plaintiff to support her “apparent authority” argument is more than overwhelmed by evidence that Jansen knew Antoni “was operating outside the scope of his apparent authority in harassing her.” Jansen, 895 F.Supp. at 1067. “If a person has information which would lead a reasonable man to believe that the agent is violating the orders of the principal or that the principal would not wish the agent to act under the circumstances known to the agent, he cannot subject the principal to liability.” Restatement (2d) Agency § 166 cmt. a (quoted in Jansen, 895 F.Supp. at 1066). Thus, Jansen’s knowledge or awareness that Antoni was operating outside the scope of his employment serves to defeat her “apparent authority” argument. In addition to the posted anti-harassment policy,38 there is further evidence of Jansen’s awareness that sexual harassment was not authorized at PCA, for when Jansen did make up her mind to complain about Antoni (in mid-January 1993, at which time the alleged harassment had been going on for at least 15 months), she had no difficulty whatsoever in knowing how to proceed. Without hesitation, she contacted the proper individual at PCA (Human Resources Director Paul Mígala), who took prompt action to address the situation. As the district court noted, the existence of a mechanism for dealing with sexual harassment not only serves to negate any finding of negligence on the part of the employer, it also quite obviously “removes the guise of apparent authority from the harassing supervisor. ” Jansen, 895 F.Supp. at 1067. In other words, because “Jansen plainly knew that she had some recourse at [PCA] ... she cannot now claim that she believed Antoni’s conduct to be sanctioned by [PCA].” Id. The evidence in the record, considered as a whole, falls short of establishing that Jansen had reason to believe that PCA authorized, condoned, or sanctioned acts of sexual harassment. Thus, with respect to Jansen’s apparent authority *550claim, we should affirm the trial judge’s grant of summary judgment in favor of PCA.
“Apparent authority” is a legitimate “agency principle,” see Restatement § 219(2)(d), but if it is interpreted too broadly, or applied without regard to the facts, it becomes the functional equivalent of strict liability. I agree with Judge Manion that “it is hard to imagine a scenario where an employee reasonably believes her supervisor’s job description includes the right to sexually harass her.” Manion Op. at p. 563 (emphasis added). This is particularly true in cases such as Jansen, where the employer had promulgated and publicized a clear policy forbidding sexual harassment in the workplace. See Phillips, Employer Sexual Harassment Liability, 44 Vand. L. Rev. at 1242-43 (“Claims that a supervisor had ... apparent authority to harass almost certainly will fail if, as is increasingly common today, the employer maintains an anti-discrimination or anti-harassment policy.”); see also Manion Op. at p. 562 n. 4 (and cases cited therein).
III. PROCEDURAL ISSUES: WAIVER
In evaluating Judge Wood’s and Judge Flaum’s analyses of what constitutes quid pro quo harassment, I observed above that neither of the cases before us involved a true quid pro quo as defined in our case law. However, even if Jansen and Ellerth did suffer from quid pro quo harassment, they have waived their quid pro quo claims because they failed to raise them in their respective EEOC complaints or district court pleadings. In short, I disagree with my fellow judges, who either assume (or in Judge Wood’s case, explicitly argue) that Jansen and Ellerth have preserved their claims of quid pro quo harassment for appellate review. Wood Op. at pp. 578-579.
Jansen did not raise a quid pro quo allegation until almost the overtime period in the lawsuit, more than a year after filing her complaint, when she submitted a memorandum and supporting affidavit in opposition to PCA’s motion for summary judgment. She had not previously alleged that Antoni suggested any kind of explicit or implicit sexual quid pro quo in her report to PCA, her filing with the Equal Employment Opportunity Commission (“EEOC”), or her complaint filed with the distnct court. Nor was this allegation ever listed in Jansen’s detailed and exhaustive handwritten “log” (allegedly chronicling Antoni’s harassment of her during the fifteen-month period prior to her complaint). In her deposition, Jansen not only failed to make such allegations, she went so far as to concede that her performance review was “[njeither discriminatory nor retaliatory” (Jansen received a satisfactory evaluation and a raise in salary, retroactive to the time when the review was due). Jansen further testified, in her deposition, that she reported all alleged acts of sexual harassment to PCA and to the EEOC.
Jansen’s belated assertions of quid pro quo harassment run afoul of well-established and important procedural rules, which, for reasons unexplained, the court has chosen to ignore. Title VII plaintiffs who wish to bring a claim in federal court must initially set forth their claim in a filing with the EEOC, or they are barred from pursuing the claim. Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994). This rule serves to “giv[e] the employer some warning of the conduct about which the employee is aggrieved,” Id. (citations omitted), and permits the EEOC to conduct an independent investigation in order that it may assist the parties in determining whether court proceedings are necessary. 42 U.S.C. § 2000e-5(b). Jansen’s EEOC filing made no allegation of quid pro quo harassment, nor did it set forth any facts that would support such a claim.
A civil plaintiff is barred from injecting new allegations into his or her case by raising them after the defendant has filed a motion for summary judgment, for such a strategy fails to give adequate or fair warning as to the claims the defendant must address and against which it must defend. Andree v. Ashland Co., 818 F.2d 1306, 1314 n. 11 (7th Cir.1987) (district court properly excluded a claim made for the first time in opposition to summary judgment). Chief Judge Posner, in an opinion joined by Judge Rovner, very recently noted that this court has been “critical of efforts to patch up a party’s deposition with [her] oum subsequent *551affidavit.” Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir.1995). Similarly, in an opinion authored by Judge Kanne and joined by Judge Flaum, this court has unequivocally stated that “parties cannot thwart the purpose of Rule 56 [summary judgment] by creating issues of fact through affidavits that contradict their own depositions.” Darnell v. Target Stores, 16 F.3d 174, 177 (7th Cir.1994) (quoting Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104 (7th Cir.1985)). By raising allegations of quid pro quo harassment in her affidavit (after failing to raise them in her EEOC complaint and after conceding in her deposition that her performance review was not discriminatory), Jansen clearly attempted to use her affidavit for the improper purpose of “retracting] or explaining] away concessions that [she made] in [her] deposition.” Rtissell, 51 F.3d at 67. Which of Jansen’s three statements are we to believe: her EEOC filing (submitted in early 1993, shortly after the harassment allegedly occurred), her sworn deposition testimony, or her sworn affidavit?
According to Seventh Circuit case law, because Jansen failed to raise her quid pro quo harassment claims in a timely fashion, she has waived those claims on appeal. I am at a loss to understand how this court can ignore its own precedents and rely upon allegations that were, in all likelihood, created and conjured up by the plaintiff “at the last minute” in order to bolster her case. See Russell, 51 F.3d at 67 (observing that “[a]lmost all affidavits submitted in litigation are drafted by the lawyers rather than by the affiants.”); Darnell, 16 F.3d at 177; Andree, 818 F.2d at 1314.
Many of my observations concerning procedure in Jansen apply with equal force to Ellerth, who also neglected to raise a claim of quid pro quo harassment in either her EEOC filing or her district court complaint. Until today, we have followed the principle, as set forth by Judge Rovner in Saxton v. American Telephone & Telegraph, 10 F.3d 526, 533 (7th Cir.1993), that when a Title VII plaintiff “first attempts] to articulate a basis for a quid pro quo claim in her appellate briefs ... that, of course, is too late.” Id. (declining to reach the merits of plaintiffs quid pro quo claim because she relied “solely” upon a hostile work environment theory at the district court level).
What lessons are future litigants to derive from the court’s abandonment of well-established procedural rules in the two cases before us today? Is the message that rules about waiver no longer exist? We would be well-advised not to cast aside the procedural rules in either Jansen’s or Ellerth’s case for a cause and also for the purpose of making the road wider and easier for future Title VII plaintiffs, nor should we use the cases before us as a vehicle for announcing a new strict liability standard that is specific to quid pro quo cases. This kind of approach will only serve to undermine respect for our precedents and encourage other plaintiffs (and their lawyers) to flout important procedural rules, to the detriment of the judicial process.
IV. CONCLUSION
I concur with the majority that the district court’s dismissal of Jansen’s claims of retaliation and intentional infliction of emotional distress was proper, and I also agree that Jansen should be remanded in order that a jury may address the limited question of whether PCA was negligent in preventing Antoni’s alleged hostile work environment harassment. However, as discussed, I am of the opinion that Jansen has waived her quid pro quo claim and do not believe that Jansen has come forward with evidence sufficient to survive summary judgment on her apparent authority claim.
Most importantly, I am not persuaded that this court should do an “end run” around the Supreme Court’s decision in Meritor by adopting strict liability in quid pro quo cases, as proposed by Judges Posner, Flaum, East-erbrook and Wood. Factually, neither .of the eases before us involved true quid pro quo harassment, and indeed, the plaintiffs have waived any such claims. Therefore, even if I were to agree that strict liability is the proper standard in quid pro quo cases (the common thread which unites Judges Posner, Flaum and Wood), the two companion cases before us are hardly the proper vehicle for announcing such a rule.
*552In the more than thirty years since Congress outlawed sex discrimination in the workplace (via a “last minute” amendment to Title VII), our nation’s legislature has been silent concerning the meaning and scope of sex discrimination, and it has not, to date, enacted a statutory definition of sexual harassment. This congressional silence, possibly attributable to pressure from special interest groups, has left a vacuum to be filled by the courts, and as the opinions of judges across the land unfortunately demonstrate, a number of courts have been all too willing to interpret sexual harassment law expansively. The current state of affairs — legislative silence coupled with energetic judicial “gap-filling” — has done violence to the Framers’ intent that lawmaking authority be vested in the legislative branch, and not the judiciary. It is my hope that Congress will address this issue and relieve the overburdened court system of the present and anticipated influx of oft-times unfounded sexual harassment litigation. Unlike a court of law, the Congress may investigate, hold hearings, and receive input from a wide range of experts, as well as those who are likely to be affected by changes in sexual harassment law. Congress, in the exercise of its wisdom and judgment, might provide for alternatives to strict liability that certainly would not be quite as far-reaching as strict liability. For example, Congress could provide more extensive remedies (e.g., double or treble damages) in cases where it could be established that (a) the plaintiff suffered true quid pro quo harassment, and (b) the employer knew of the harassment but failed to take appropriate remedial measures. Such an approach would retain the well-accepted and tested negligence standard, but increase the price tag for employer negligence with respect to quid pro quo harassment. This is but one example of how the nation’s constitutionally designated lawmaking body might choose to deal with the problem of quid pro quo harassment, while still allowing employers to defend themselves by demonstrating that they lacked knowledge of the harassment and/or took reasonable measures to prevent the same.
In closing, I observe that “sexual harassment” is in the eyes of the beholder. One person’s idea of friendly banter is another’s idea of harassment. In the highly-politicized environment surrounding the volatile issue of sexual harassment in the workplace, neither employers nor employees have a clear understanding of what conduct the law allows, much less what it prohibits. Congress, as noted, has been silent. And despite a profusion of reported cases on sexual harassment, the judicial branch has failed to reach consensus about the meaning and extent of Title VII’s prohibition against sexual harassment. Indeed, the divergence in opinion across our fellow federal circuits, as well as the eight separate opinions submitted by members of this court today, are powerful proof that the law in this area is unclear and unsettled. As it currently stands, the law of sexual harassment “tend[s] to avoid giving employers definite rules to obey but instead lay[s] out sweeping if vague aspirations that are given the force of law.... No one really knows where these concepts begin and leave off; all employers know is that if they guess wrong some future jury or judge may decide that they have broken the law.” Olson, Excuse Factory at 3. In light of this uncertainty and confusion, I believe it is particularly unfair and most unreasonable to hold an employer automatically (strictly) liable for the alleged missteps of an alleged “supervisor,” irrespective of the employer’s lack of knowledge concerning the “harassment” and regardless of his efforts to discourage harassment in the workplace. Strict liability tips the time-honored and respected scales of justice in favor of the plaintiff.
. I identify Judge Wood in this opinion as Judge Diane Wood, as we have another most distinguished and learned member of the court named Harlington Wood, Jr.
. "Generally speaking, the [IRS’] tax deficiency assessments are entitled to the 'presumption of correctness.' This presumption imposes upon the taxpayer the burden of proving that the assessment is erroneous.” Gold Emporium, Inc. v. C.I.R., 910 F.2d 1374, 1378 (7th Cir.1990) (citing Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212 (1933)); see also Tax Court Rule 142. The presumption is rebuttable. McCabe Packing Co. v. United States, 809 P.Supp. 614, 616 (C.D.Ill.1992).
. Similarly, I note that "the availability of a recovery in tort without proof of negligence as a cause of a damaging event has vastly improved a [plaintiff's] opportunity for recovery against a manufacturer or other supplier of a product that was involved in such an event.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 99 (Fifth ed.1984) (emphasis added).
. I do not agree with Judge Wood that Meritor involved allegations of quid pro quo harassment by a supervisor. Wood Op. at p. 568. While, as Judge Flaum notes, the original complaint may have contained allegations of quid pro quo harassment, neither the district court, the Court of Appeals, nor the Supreme Court resolved the case on a quid pro quo theory of liability. Flaum *520Op. at p. 500 n. 8. Judge Wood’s insistence that Meritor presented both a hostile work environment and a quid pro quo claim dovetails well with her argument that the two types of harassment are effectively one and the same, and should therefore both be measured under a strict liability standard. Nor should we assume (as Judge Cudahy does) that Meritor, by “implication,” suggested differing standards of employer liability for quid pro quo and hostile work environment claims. Cudahy Op. at p. 504. 5. Neither Jansen nor Ellerth argue that their supervisors acted with "actual authority” to engage in sexual harassment, but Jansen does claim that her supervisor acted with "apparent authority." As discussed below, I am of the opinion that Jansen has failed to introduce evidence sufficient to proceed to trial on her apparent authority claim.
. An employer may also be held liable for negligence if it failed to exercise "due care in hiring the offending employee in the first place.” Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir.1990). Neither Jansen nor Ellerth allege negligence in hiring, nor is there any evidence in the respective records to support such claims.
. Even jurisdictions that accept the doctrine of strict liability for "abnormally dangerous" or "ultrahazardous” activities apply the doctrine cautiously, recognizing that application of the doctrine is limited by the many factors set forth in § 520 of the Restatement (Second) of Torts.
. The defenses available to a defendant-manufacturer in a strict products liability action vaiy from jurisdiction to jurisdiction. There are jurisdictions, for example, that recognize a defense "if a machine, drug, or other product was designed or constructed by a producer in conformity with the ‘state of the art’ at the time possession was surrendered.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 99 (Fifth ed.1984).
. Indeed, by adopting an agency standard independent of state law (i.e., negligence), our own decisions have implicitly recognized that the question of employer liability for sexual harassment under Title VII is a matter of federal common law. Although Judge Easterbrook has participated in some of these decisions, he has not to date even hinted in dicta, much less unequivocally stated, that agency principles in Title VII cases must be derived from state law. See, e.g., Zimmerman, supra (employer is not liable for negligence if it lacked knowledge of the alleged harassment). Nor, until today, has Judge Wood advocated such a rule. In fact, Judge Wood’s panel opinion in Ellerth analyzed “general agency cases,” including state and federal precedents from across the country, and there is no suggestion in that opinion that the relevant agency-law principles were to be drawn from the law of a particular state (i.e., Illinois). Ellerth v. Burlington Industries, Inc., 102 F.3d 848, 855-59 (7th Cir.1996), reh'g granted and decision vacated, 102 F.3d at 863.
. Nor has the High Court looked to state law in more recent cases involving the interpretation of Title VII terminology, as Judge Manion points out in his concurrence. Manion Op. at p. 564.
. Presumably these heightened costs of compliance — like those associated with a strict liability standard — would be passed on to workers and consumers.
. Indeed, there are isolated portions of Judge Wood’s opinion that actually do reflect "traditional agency law” and even suggest that she is advocating a negligence standard. For example, Judge Wood writes that “if the supervisor uses neither actual nor apparent authority to take the employment action, then the employer should be liable only if the plaintiff shows that the employer knew or should have known about the harassing behavior.” Wood Op. at p. 566 (emphasis added).
. In a supposed qualifying statement that is of no value, Judge Wood acknowledges that "severe forms” of sexual harassment, such as violent rape, "may be so far from the norm that the employer should not be held liable in the absence of negligence.” Wood Op. at p. 574 (referring to Martin v. Cavalier Hotel Corp., 48 F.3d 1343 (4th Cir.1995)).
. The NLRA expressly distinguishes "supervisors" from other employees, providing, in relevant part, that: The term supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C. § 152(11).
. The differences between these two kinds of sexual harassment are discussed at greater length below.
. Judge Wood claims that Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir.1994), "suggest[s]” that the Second Circuit has "moved toward[s]” her position. Wood Op. at p. 569. However, Judge Wood has not cited (nor am I aware of) a single opinion which directly supports her view that employers should be held strictly liable in all cases involving supervisors. In fact, this position was very recently repudiated by the Eleventh Circuit in Faragher v. City of Boca Raton, 111 F.3d 1530 (11th Cir.1997) (en banc), as discussed below.
. The EEOC as amicus in Ellerth argued before the en banc panel that the issue of whether the employer has notice of the harassment “doesn’t matter” because the theory underlying strict liability is that the supervisor and the employer have somehow “merge[d] into a single entity."
. An employer can know about "harassment” that is not actionable as a matter of law. Conversely, harassment more frequently than not takes place without the employer’s knowledge. Thus, as a matter of logic, it makes sense to keep these two inquiries separate.
. As noted in Section III of this opinion, I am confident that both Jansen and EUerth have waived their claims of quid pro quo harassment by failing to raise them in their respective EEOC claims or district court complaints.
. In Bryson, we confined our analysis to the question of whether the plaintiff had come forward with sufficient evidence of the loss of a "tangible employment benefit” to survive summary judgment on her quid pro quo claim (we held that she did). The Bryson court noted that in other circuits, an employer may be held liable for quid pro quo harassment under a respondeat superior theory, if the plaintiff can "link the employer to the actions of the harasser.” 96 F.3d at 915. However, we have not to date elaborated upon the scope of respondeat superior in Title VII sexual harassment cases involving an alleged quid pro quo.
. Her performance reviews required the approval of Henry Weil, the Director of Operations at the PCA facility.
. Creatively, Judge Wood asserts that the plaintiff suffered a tangible economic loss because she was deprived of the interest she would have earned on a timely raise, Wood Op. at p. 579. I am not persuaded that the interest on a very modest amount of money, for a relatively short period of time, rises to the level of a tangible, job-related detriment.
. Jansen claims that she "suffer[ed] from depression and other physical and mental ailments” on account of Antoni's harassment. If Jansen prevails on her negligence claim on remand, the jury will have an opportunity to assess the credibility of her expert witnesses (if any) concerning her mental state, keeping in mind “the marked propensity of those who purport to have psychiatric expertise to tailor their testimony to the particular client whom they represent.” Steele v. State, 97 Wis.2d 72, 97, 294 N.W.2d 2 (1980). I agree with Judge Posner that there is "a serious question of whether [Jansen] can obtain substantial damages” if she succeeds in attempting to establish a hostile work environment claim on remand, because she waited for some fifteen months before reporting Antoni to PCA's Human Resources Department, all the time keeping a detailed log of her alleged harasser's activities. Posner Op. at pp. 515-516. Under the doctrine of avoidable consequences, "one injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort.” Black’s Law Dictionary 136 (6th ed.1991).
. In fact, as Judge Flaum notes in his opinion, Ellerth received a promotion (in March 1994). Flaum Op. at p. 503 n. 13.
. Although the Civil Rights Act of 1991 permits the recovery of punitive damages, as well as compensatory damages for "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniaiy losses,” I wish to emphasize that punitive damages are available under this law only if certain requirements are met, i.e., only if the "complaining party [can] demonstrate[ ] that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Pub.L. No. 102-166, § 102(b), 105 Stat. 1071, 1073 (1991) (codified at 42 U.S.C. § 1981a(b)(3)) (emphasis added). Furthermore, the combined sum of the punitive damages and the compensatory damages for non-pecuniary loss may not exceed $300,000 for each complaining party. Id. I point out these limitations because a plaintiff who predicates his or her claim solely on a theory of strict liability (i.e., a plaintiff who has not even demonstrated employer negligence), will obviously fail in establishing that an employer has acted with "malice or reckless indifference” to rights protected by Title VII.
. The Supreme Court has suggested that this is a viable strategy. In 1991, the Court held that ”[a]lthough all statutory claims may not be appropriate for arbitration, having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991) (stockbroker's claim under the Age Discrimination in Employment Act can be subjected to compulsory arbitration, pursuant to written arbitration agreement).
. See, e.g., William W. George, Medical Technology and Competitiveness in the World Market, 50 Food & Drug L.J. 477 (1995) (describing how medical technology firms are moving their research, development, and manufacturing operations overseas in part to avoid exposure to product liability lawsuits).
. In May 1995, for example, the Dow Corning Corporation filed for Chapter 11 bankruptcy protection in response to a mounting number of product liability lawsuits involving the company’s silicone breast implants. Milo Geyelin & Timothy D. Schellhardt, Dow Corning Seeks Chapter 11 Shield, Wall St. J., May 16, 1995, at A3.
. See, e.g., Ill. St. 735 § 5/2-1115.05 (caps punitive damages at three times economic damages); Fl. Stat. § 768.73(1)(a) & (b) (1993) (same); Ga. Code Ann. § 51-12-5.1(e) (1995) ($250,000 cap); Va.Code Ann. § 8.01-38.1 (1993) ($350,000 cap).
. These states include Louisiana (prohibited by common-law but authorized by specific statutes), Massachusetts (prohibited by common-law unless expressly authorized by statute), Washington (same); Nebraska (prohibited by common-law), and New Hampshire (prohibited by statute unless specifically authorized by statute). 1 Ghiardi & Kircher, Punitive Damages: Law & Practice §§ 4.06-4.11 (1997). Because the common-law of Connecticut and Michigan limits punitive damages, at least in part, to those of a “compensatory” and “exemplary” nature, respectively, "some might consider that punitive damages, in the traditional sense, are not allowed in these jurisdictions.” Id. at § 4.06 n. I and §§ 4.02-4.04.
. With respect to punitive damages, the judicial pendulum may be swinging back towards a more cautious approach, for the United States Supreme Court recently held that the due process clause of the 14th Amendment prohibits “grossly excessive” punishment in the form of punitive damages. See, e.g., BMW of N. America, Inc. v. Gore, - U.S. -, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (punitive damages in excess of 500 times the amount of actual damages was “grossly excessive”).
. Many states, including Wisconsin, have enacted statutory caps on the amount a plaintiff can recover for “non-economic” damages (i.e., "pain and suffering”) in medical malpractice cases. Wis. Stat. Ann. § 893.55(4)(d) (limiting recovery to $350,000). At this writing, the fate of Illinois' recently enacted statutory cap of $500,000 on non-economic damages in medical malpractice cases was yet to be resolved by the Illinois Supreme Court. John Flynn Rooney, "Tort-Law Uncertainties Put Brake on Pending Cases," Chicago Daily Law Bulletin, Vol. 143, No. 82 (April 26, 1997).
. In Wisconsin:
Employment discrimination because of arrest record includes, but is not limited to, requesting an applicant, employe, member, licensee or any other individual, on an application form or otherwise, to supply information regarding any arrest record of the individual except a record of a pending charge....
Wis. Stat. Ann. § 111.335.
. In 1996, the Wisconsin Senate passed a bill (S.572) to repeal these controversial provisions of Wisconsin law (which are opposed by business groups) but the legislation failed to pass the Wisconsin Assembly. According to press reports, similar legislation may be re-introduced this year. See Geeta Sharma-Jackson, “Bill Could Restrict Felons' Jobs: Lawmaker Wants to Let Employers, Not State, Make Hiring Decisions,” Milwaukee Journal-Sentinel, May 10, 1997 at 1.
. Illinois' prohibition does not extend to prior convictions, which may be used "in evaluating the qualifications and character of an employee or a prospective employee.” 775 ILCS 5/2-103.
. Judge Diane Wood inexplicably criticizes Burlington's policy as "brief” and "skimpy,” without explaining how the policy falls short of her ideal. Wood Op. at pp. 577, 580. At any rate, under the strict standard Judge Wood espouses, the presence or absence of a sexual harassment policy would appear to have no bearing on a firm’s liability, for the firm would be held responsible regardless of the measures it took (or did not take) to prevent harassment.
. Judge Manion and I are in substantial agreement concerning the concept of "apparent authority" and its application to sexual harassment cases. See Manion Op. Part III.
. At this juncture, I note another area of disagreement with Judge Wood's opinion. Judge Wood asserts that the existence of a policy against sexual harassment does not affect an employer’s liability under an apparent authority theory. Wood Op. at p. 575. However, the existence of a publicized sexual harassment policy should logically and legally create awareness that sexual harassment is frowned upon by the company and will not be tolerated. Under these circumstances, a reasonable belief in the supervisor's “authority to harass” would be impossible.
. The holding in O'Melveny is that state law governs whether an employee's or agent’s knowledge is imputed to a bank that has been taken over by the FDIC, or to the FDIC as its receiver, while federal law determines whether a financial institution that acts with particular knowledge is liable. The holding of Kamen is that state law determines whether investors in a mutual fund regulated by the Investment Company Act must make demand on the board of directors before commencing a derivative action (that is, an action as the corporation's agents) seeking recovery under federal law. In each case, an adverse decision on the agency issue under state law would have scotched the substantive claim based on federal law.
. This position appears to be gaining support from other circuits. See Tones v. Pisano, 116 F.3d 625, 635, n. 14 (2d Cir.1997) ("Liability cannot attach on [the] grounds [of apparent authority] in the instant case, however, as it is undisputed that [the plaintiff] knew of [the defendant's] harassment policy and its availability.”); Harrison, 112 F.3d at 1444 ("[The existence of apparent authority] will often hinge upon whether the employer has a formal policy against sexual harassment. When an employer lacks a formal written grievance policy, a victim of sexual harassment will reasonably perceive her only available options to be silently acquiescing in the harassment or leaving her job. In contrast, if an employer has taken steps to remove any possible inference that a supervisor has authority to sexually harass his subordinates, the victim is likely aware the harassment is not authorized and any reliance on apparent authority will be difficult to establish.”) (Internal quotation marks omitted) (Emphasis added). But it is not an altogether new understanding of apparent authority. See Barnes v. Costle, 561 F.2d 983, 996 (D.C.Cir. 1977) ("[I]t could not be reasonably believed by an employee that the supervisor’s [sexual] demands derived from the employer or that in complying with such demands the employee actually relied upon the authority of the employer.”) (MacKinnon, concurring).