Erin E Meyers and Joni Hersch, ‘Employment Practices Liability Insurance and Ex Post Moral Hazard’, 106 Cornell Law Review 947 (2021). In their article ‘Employment Practices Liability Insurance and Ex Post Moral Hazard’, Erin Meyers and Joni Hirsch argue employers should not be able to fully avoid employment discrimination liability through employment practices liability insurance (EPLI) when the liability results from employer-facilitated discrimination. The authors suggest full coverage under EPLI triggers ex post moral hazard – ‘[too little] care in reacting to wrongful employment acts’ (p 973) – and improperly lessens the deterrence employment discrimination liability promises. Their legislative solution would mandate employers pay part of the liability and allow public entities ‘the power to issue uninsurable fines’ (p 985) for liability stemming from employer-facilitated discrimination. The conditions would not apply to liability for employment discrimination by low-level employees for which the employer is vicariously liable … (more)
[Henry L Chambers, Jr, JOTWELL, 31 October 2022]
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