OCTOBER TERM, 1997
Syllabus
BURLINGTON INDUSTRIES, INC.
v. ELLERTH
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 97-569. Argued April 22, 1998-Decided June 26,1998
Respondent Kimberly Ellerth quit her job after 15 months as a
salesperson in one of petitioner Burlington Industries' many
divisions, allegedly because she had been subjected to constant
sexual harassment by one of her supervisors, Ted Slowik. Slowik was
a midlevel manager who had authority to hire and promote employees,
subject to higher approval, but was not considered a policymaker.
Against a background of repeated boorish and offensive remarks and
gestures allegedly made by Slowik, Ellerth places particular
emphasis on three incidents where Slowik's comments could be
construed as threats to deny her tangible job benefits. Ellerth
refused all of Slowik's advances, yet suffered no tangible
retaliation and was, in fact, promoted once. Moreover, she never
informed anyone in authority about Slowik's conduct, despite
knowing Burlington had a policy against sexual harassment. In
filing this lawsuit, Ellerth alleged Burlington engaged in sexual
harassment and forced her constructive discharge, in violation of
Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e
et seq. The District Court granted Burlington summary
judgment. The Seventh Circuit en bane reversed in a decision that
produced eight separate opinions and no consensus for a controlling
rationale. Among other things, those opinions focused on whether
Ellerth's claim could be categorized as one of
quid pro quo
harassment, and on whether the standard for an employer's liability
on such a claim should be vicarious liability or negligence.
Held: Under Title VII, an employee who refuses the
unwelcome and threatening sexual advances of a supervisor, yet
suffers no adverse, tangible job consequences, may recover against
the employer without showing the employer is negligent or otherwise
at fault for the supervisor's actions, but the employer may
interpose an affirmative defense. Pp. 751-766.
(a) The Court assumes an important premise yet to be
established: A trier offact could find in Slowik's remarks numerous
threats to retaliate against Ellerth if she denied some sexual
liberties. The threats, however, were not carried out. Cases based
on carried-out threats are referred to often as
"quid pro
quo" cases, as distinct from bothersome attentions or sexual
remarks sufficient to create a "hostile work environment." Those
two terms do not appear in Title VII, which forbids only
743
"discriminat[ion] against any individual with respect to his ...
terms [or] conditions ... of employment, because of ... sex." §
2000e-2(a)(1). In
Meritor Savings Bank, FSB v.
Vinson, 477 U.
S. 57, 65, this Court distinguished between the two concepts,
saying both are cognizable under Title VII, though a hostile
environment claim requires harassment that is severe or pervasive.
Meritor did not discuss the distinction for its bearing upon
an employer's liability for discrimination, but held, with no
further specifics, that agency principles controlled on this point.
Id., at 72. Nevertheless, in
Meritor's wake, Courts
of Appeals held that, if the plaintiff established a
quid pro
quo claim, the employer was subject to vicarious liability.
This rule encouraged Title VII plaintiffs to state their claims in
quid pro quo terms, which in turn put expansive pressure on
the definition. For example, the question presented here is phrased
as whether Ellerth can state a
quid pro quo claim, but the
issue of real concern to the parties is whether Burlington has
vicarious liability, rather than liability limited to its own
negligence. This Court nonetheless believes the two terms are of
limited utility. To the extent they illustrate the distinction
between cases involving a carried-out threat and offensive conduct
in general, they are relevant when there is a threshold question
whether a plaintiff can prove discrimination. Hence, Ellerth's
claim involves only unfulfilled threats, so it is a hostile work
environment claim requiring a showing of severe or pervasive
conduct. This Court accepts the District Court's finding that
Ellerth made such a showing. When discrimination is thus proved,
the factors discussed below, not the categories
quid pro quo
and hostile work environment, control on the issue of vicarious
liability. Pp. 751-754.
(b) In deciding whether an employer has vicarious liability in a
case such as this, the Court turns to agency law principles, for
Title VII defines the term "employer" to include "agents."
§2000e(b). Given this express direction, the Court concludes a
uniform and predictable standard must be established as a matter of
federal law. The Court relies on the general common law of agency,
rather than on the law of any particular State.
Community for
Creative Non-Violence v.
Reid, 490 U. S. 730, 740. The
Restatement (Second) of Agency (hereinafter Restatement) is a
useful beginning point, although common-law principles may not be
wholly transferable to Title VII. See
Meritor, supra, at 72.
Pp. 754-755.
(c) A master is subject to liability for the torts of his
servants committed while acting in the scope of their employment.
Restatement § 219(1). Although such torts generally may be either
negligent or intentional, sexual harassment under Title VII
presupposes intentional conduct. An intentional tort is within the
scope of employment when
744
actuated, at least in part, by a purpose to serve the employer.
Id., §§ 228(1)(c), 230. Courts of Appeals have held,
however, a supervisor acting out of gender-based animus or a desire
to fulfill sexual urges may be actuated by personal motives
unrelated and even antithetical to the employer's objectives. Thus,
the general rule is that sexual harassment by a supervisor is not
conduct within the scope of employment. pp. 755-757.
(d) However, scope of employment is not the only basis for
employer liability under agency principles. An employer is subject
to liability for the torts of its employees acting outside the
scope of their employment when,
inter alia, the employer
itself was negligent or reckless, Restatement § 219(2)(b), or the
employee purported to act or to speak on behalf of the employer and
there was reliance upon apparent authority, or he was aided in
accomplishing the tort by the existence of the agency relation,
id., § 219(2)(d). An employer is negligent, and therefore subject
to liability under § 219(2)(b), if it knew or should have known
about sexual harassment and failed to stop it. Negligence sets a
minimum standard for Title VII liability; but Ellerth seeks to
invoke the more stringent standard of vicarious liability. Section
219(2)(d) makes an employer vicariously liable for sexual
harassment by an employee who uses apparent authority (the apparent
authority standard), or who was "aided in accomplishing the tort by
the existence of the agency relation" (the aided in the agency
relation standard). Pp.758-759.
(e) As a general rule, apparent authority is relevant where the
agent purports to exercise a power which he or she does not have,
as distinct from threatening to misuse actual power. Compare
Restatement § 6 with § 8. Because supervisory harassment cases
involve misuse of actual power, not the false impression of its
existence, apparent authority analysis is inappropriate. When a
party seeks to impose vicarious liability based on an agent's
misuse of delegated authority, the Restatement's aided in the
agency relation rule provides the appropriate analysis. Pp.
759-760.
(f) That rule requires the existence of something more than the
employment relation itself because, in a sense, most workplace
tortfeasors, whether supervisors or co-workers, are aided in
accomplishing their tortious objective by the employment relation:
Proximity and regular contact afford a captive pool of potential
victims. Such an additional aid exists when a supervisor subjects a
subordinate to a significant, tangible employment action, i.
e., a significant change in employment status, such as
discharge, demotion, or undesirable reassignment. Every Federal
Court of Appeals to have considered the question has correctly
found vicarious liability in that circumstance. This Court imports
the significant, tangible employment action concept for resolution
of the vicarious
745
liability issue considered here. An employer is therefore
subject to vicarious liability for such actions. However, where, as
here, there is no tangible employment action, it is not obvious the
agency relationship aids in commission of the tort. Moreover,
Meritor holds that agency principles constrain the
imposition of employer liability for supervisor harassment.
Limiting employer liability is also consistent with Title VII's
purpose to the extent it would encourage the creation and use of
antiharassment policies and grievance procedures. Thus, in order to
accommodate the agency principle of vicarious liability for harm
caused by misuse of supervisory authority, as well as Title VII's
equally basic policies of encouraging forethought by employers and
saving action by objecting employees, the Court adopts, in this
case and in
Faragher v.
Boca Raton, post, p. 775, the
following holding: An employer is subject to vicarious liability to
a victimized employee for an actionable hostile environment created
by a supervisor with immediate (or successively higher) authority
over the employee. When no tangible employment action is taken, a
defending employer may raise an affirmative defense to liability or
damages, subject to proof by a preponderance of the evidence, see
Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary
elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise. While proof that an
employer had promulgated an antiharassment policy with complaint
procedure is not necessary in every instance as a matter of law,
the need for a stated policy suitable to the employment
circumstances may appropriately be addressed in any case when
litigating the first element of the defense. And while proof that
an employee failed to fulfill the corresponding obligation of
reasonable care to avoid harm is not limited to showing an
unreasonable failure to use any complaint procedure provided by the
employer, a demonstration of such failure will normally suffice to
satisfy the employer's burden under the second element of the
defense. No affirmative defense is available, however, when the
supervisor's harassment culminates in a tangible employment action.
Pp.760-765.
(g) Given the Court's explanation that the labels
quid pro
quo and hostile work environment are not controlling for
employer-liability purposes, Ellerth should have an adequate
opportunity on remand to prove she has a claim which would result
in vicarious liability. Although she has not alleged she suffered a
tangible employment action at Slowik's hands, which would deprive
Burlington of the affirmative defense, this is not dispositive. In
light of the Court's decision, Burlington is still
746
subject to vicarious liability for Slowik's activity, but should
have an opportunity to assert and prove the affirmative defense.
Pp. 765-766.
123 F.3d
490, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, and BREYER, JJ.,
joined. GINSBURG, J., filed an opinion concurring in the judgment,
post, p. 766. THOMAS, J., filed a dissenting opinion, in
which SCALIA, J., joined,
post, p.766.
James J.
Casey argued the cause for petitioner.
With him on the briefs were
Mary Margaret Moore and
Robert A. Wicker.
Ernest T. Rossiello argued the cause for respondent.
With him on the brief were Margaret A. Zuleger and Eric
Schnapper.
Deputy Solicitor General Underwood argued the cause for the
United States et al. as amici curiae urging affirmance. With her on
the brief were Solicitor General Waxman, Acting Assistant Attorney
General Lee, Irving L. Gornstein, C. Gregory Stewart, Philip B.
Sklover, Carolyn L. Wheeler, and Susan L. P. Starr. *
JUSTICE KENNEDY delivered the opinion of the Court. We decide
whether, under Title VII of the Civil Rights Act of 1964, 78 Stat.
253, as amended, 42 U. S. C. § 2000e
et
*Briefs of
amici curiae urging reversal were filed for
the Chamber of Commerce of the United States by
Carol Connor
Flowe, Stephen A. Bokat, Robin S.
Conrad, and
Sussan
L. Mahallati; and for the Equal Employment Advisory Council by
Ann Elizabeth Reesman.
Briefs of
amici curiae urging affirmance were filed for
the American Federation of Labor and Congress of Industrial
Organizations by
Jonathan P. Hiatt, Marsha S.
Berzon,
and
Laurence Gold; for Equal Rights Advocates et al. by
Samuel A. Marcosson, Beth H. Parker, and
Rose Fua;
and for the Rutherford Institute by
John W Whitehead and
Steven H. Aden.
David Benjamin Oppenheimer, H. Candace Gorman, and Paula A.
Brantner filed a brief for the National Employment
Lawyers Association as
amicus curiae.
747
seq., an employee who refuses the unwelcome and
threatening sexual advances of a supervisor, yet suffers no
adverse, tangible job consequences, can recover against the
employer without showing the employer is negligent or otherwise at
fault for the supervisor's actions.
I
Summary judgment was granted for the employer, so we must take
the facts alleged by the employee to be true.
United States
v.
Diebold, Inc., 369 U. S. 654, 655 (1962)
(per curiam). The employer is Burlington Industries, the
petitioner. The employee is Kimberly Ellerth, the respondent. From
March 1993 until May 1994, Ellerth worked as a salesperson in one
of Burlington's divisions in Chicago, Illinois. During her
employment, she alleges, she was subjected to constant sexual
harassment by her supervisor, one Ted Slowik.
In the hierarchy of Burlington's management structure, Slowik
was a midlevel manager. Burlington has eight divisions, employing
more than 22,000 people in some 50 plants around the United States.
Slowik was a vice president in one of five business units within
one of the divisions. He had authority to make hiring and promotion
decisions subject to the approval of his supervisor, who signed the
paperwork. See 912 F. Supp. 1101, 1119, n. 14 (ND Ill. 1996).
According to Slowik's supervisor, his position was "not considered
an upper-level management position," and he was "not amongst the
decision-making or policy-making hierarchy."
Ibid. Slowik
was not Ellerth's immediate supervisor. Ellerth worked in a
two-person office in Chicago, and she answered to her office
colleague, who in turn answered to Slowik in New York.
Against a background of repeated boorish and offensive remarks
and gestures which Slowik allegedly made, Ellerth places particular
emphasis on three alleged incidents where Slowik's comments could
be construed as threats to deny her
748
tangible job benefits. In the summer of 1993, while on a
business trip, Slowik invited Ellerth to the hotel lounge, an
invitation Ellerth felt compelled to accept because Slowik was her
boss. App. 155. When Ellerth gave no encouragement to remarks
Slowik made about her breasts, he told her to "loosen up" and
warned, "you know, Kim, I could make your life very hard or very
easy at Burlington."
Id., at 156.
In March 1994, when Ellerth was being considered for a
promotion, Slowik expressed reservations during the promotion
interview because she was not "loose enough."
Id., at 159.
The comment was followed by his reaching over and rubbing her knee.
Ibid. Ellerth did receive the promotion; but when Slowik
called to announce it, he told Ellerth, "you're gonna be out there
with men who work in factories, and they certainly like women with
pretty butts/legs."
Id., at 159-160.
In May 1994, Ellerth called Slowik, asking permission to insert
a customer's logo into a fabric sample. Slowik responded, "I don't
have time for you right now, Kim ... unless you want to tell me
what you're wearing."
Id., at 78. Ellerth told Slowik she
had to go and ended the call.
Ibid. A day or two later,
Ellerth called Slowik to ask permission again. This time he denied
her request, but added something along the lines of, "are you
wearing shorter skirts yet, Kim, because it would make your job a
whole heck of a lot easier."
Id., at 79.
A short time later, Ellerth's immediate supervisor cautioned her
about returning telephone calls to customers in a prompt fashion.
912 F. Supp., at 1109. In response, Ellerth quit. She faxed a
letter giving reasons unrelated to the alleged sexual harassment we
have described.
Ibid. About three weeks later, however, she
sent a letter explaining she quit because of Slowik's behavior.
Ibid.
During her tenure at Burlington, Ellerth did not inform anyone
in authority about Slowik's conduct, despite knowing Burlington had
a policy against sexual harassment.
Ibid.
749
In fact, she chose not to inform her immediate supervisor (not
Slowik) because" 'it would be his duty as my supervisor to report
any incidents of sexual harassment.'"
Ibid. On one occasion,
she told Slowik a comment he made was inappropriate.
Ibid.
In October 1994, after receiving a right-to-sue letter from the
Equal Employment Opportunity Commission (EEOC), Ellerth filed suit
in the United States District Court for the Northern District of
Illinois, alleging Burlington engaged in sexual harassment and
forced her constructive discharge, in violation of Title VII. The
District Court granted summary judgment to Burlington. The court
found Slowik's behavior, as described by Ellerth, severe and
pervasive enough to create a hostile work environment, but found
Burlington neither knew nor should have known about the conduct.
There was no triable issue of fact on the latter point, and the
court noted Ellerth had not used Burlington's internal complaint
procedures.
Id., at 1118. Although Ellerth's claim was
framed as a hostile work environment complaint, the District Court
observed there was a
quid pro quo "component" to the hostile
environment.
Id., at 1121. Proceeding from the premise that
an employer faces vicarious liability for
quid pro quo
harassment, the District Court thought it necessary to apply a
negligence standard because the
quid pro quo merely
contributed to the hostile work environment. See id., at 1123. The
District Court also dismissed Ellerth's constructive discharge
claim.
The Court of Appeals en banc reversed in a decision which
produced eight separate opinions and no consensus for a controlling
rationale. The judges were able to agree on the problem they
confronted: Vicarious liability, not failure to comply with a duty
of care, was the essence of Ellerth's case against Burlington on
appeal. The judges seemed to agree Ellerth could recover if
Slowik's unfulfilled threats to deny her tangible job benefits was
sufficient to impose vicarious liability on Burlington.
Jansen v.
Packing Corp.
750
of America, 123 F.3d
490, 494 (CA7 1997)
(per curiam). With the exception of
Judges Coffey and Easterbrook, the judges also agreed Ellerth's
claim could be categorized as one of
quid pro quo
harassment, even though she had received the promotion and had
suffered no other tangible retaliation.
Ibid.
The consensus disintegrated on the standard for an employer's
liability for such a claim. Six judges, Judges Flaum, Cummings,
Bauer, Evans, Rovner, and Diane P. Wood, agreed the proper standard
was vicarious liability, and so Ellerth could recover even though
Burlington was not negligent.
Ibid. They had different
reasons for the conclusion. According to Judges Flaum, Cummings,
Bauer, and Evans, whether a claim involves a
quid pro quo
determines whether vicarious liability applies; and they in turn
defined
quid pro quo to include a supervisor's threat to
inflict a tangible job injury whether or not it was completed.
Id., at 499. Judges Wood and Rovner interpreted agency
principles to impose vicarious liability on employers for most
claims of supervisor sexual harassment, even absent a
quid pro
quo. Id., at 565.
Although Judge Easterbrook did not think Ellerth had stated a
quid pro quo claim, he would have followed the law of the
controlling State to determine the employer's liability, and by
this standard, the employer would be liable here.
Id., at
552. In contrast, Judge Kanne said Ellerth had stated a
quid pro
quo claim, but negligence was the appropriate standard of
liability when the
quid pro quo involved threats only.
Id., at 505.
Chief Judge Posner, joined by Judge Manion, disagreed.
He asserted Ellerth could not recover against Burlington despite
having stated a
quid pro quo claim. According to Chief Judge
Posner, an employer is subject to vicarious liability for "act[s]
that significantly alte[r] the terms or conditions of employment,"
or "company act[s]."
Id., at 515. In the emergent
terminology, an unfulfilled
quid pro quo is a
751
mere threat to do a company act rather than the act itself, and
in these circumstances, an employer can be found liable for its
negligence only.
Ibid. Chief Judge Posner also found Ellerth
failed to create a triable issue of fact as to Burlington's
negligence.
Id., at 517.
Judge Coffey rejected all of the above approaches because he
favored a uniform standard of negligence in almost all sexual
harassment cases.
Id., at 518.
The disagreement revealed in the careful opinions of the judges
of the Court of Appeals reflects the fact that Congress has left it
to the courts to determine controlling agency law principles in a
new and difficult area of federal law. We granted certiorari to
assist in defining the relevant standards of employer liability.
522 U. S. 1086 (1998).
II
At the outset, we assume an important proposition yet to be
established before a trier of fact. It is a premise assumed as
well, in explicit or implicit terms, in the various opinions by the
judges of the Court of Appeals. The premise is: A trier of fact
could find in Slowik's remarks numerous threats to retaliate
against Ellerth if she denied some sexual liberties. The threats,
however, were not carried out or fulfilled. Cases based on threats
which are carried out are referred to often as
quid pro quo
cases, as distinct from bothersome attentions or sexual remarks
that are sufficiently severe or pervasive to create a hostile work
environment. The terms
quid pro quo and hostile work
environment are helpful, perhaps, in making a rough demarcation
between cases in which threats are carried out and those where they
are not or are absent altogether, but beyond this are of limited
utility.
Section 703(a) of Title VII forbids
"an employer-
"(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or
752
privileges of employment, because of such individual's ... sex."
42 U. S. C. § 2000e-2(a)(1).
"Quid pro quo" and "hostile work environment" do not
appear in the statutory text. The terms appeared first in the
academic literature, see C. MacKinnon, Sexual Harassment of Working
Women (1979); found their way into decisions of the Courts of
Appeals, see,
e. g., Henson v.
Dundee, 682 F.2d
897, 909 (CAll 1982); and were mentioned in this Court's
decision in
Meritor Savings Bank, FSB v.
Vinson,
477 U. S. 57
(1986). See generally E. Scalia, The Strange Career of
Quid Pro
Quo Sexual Harassment, 21 Harv. J. L. & Pub. Policy 307
(1998).
In
Meritor, the terms served a specific and limited
purpose. There we considered whether the conduct in question
constituted discrimination in the terms or conditions of employment
in violation of Title VII. We assumed, and with adequate reason,
that if an employer demanded sexual favors from an employee in
return for a job benefit, discrimination with respect to terms or
conditions of employment was explicit. Less obvious was whether an
employer's sexually demeaning behavior altered terms or conditions
of employment in violation of Title VII. We distinguished between
quid pro quo claims and hostile environment claims, see 477
U. S., at 65, and said both were cognizable under Title VII, though
the latter requires harassment that is severe or pervasive.
Ibid. The principal significance of the distinction is to
instruct that Title VII is violated by either explicit or
constructive alterations in the terms or conditions of employment
and to explain the latter must be severe or pervasive. The
distinction was not discussed for its bearing upon an employer's
liability for an employee's discrimination. On this question
Meritor held, with no further specifics, that agency
principles controlled.
Id., at 72.
Nevertheless, as use of the terms grew in the wake of
Meritor, they acquired their own significance. The standard
of employer responsibility turned on which type of harass-
753
ment occurred. If the plaintiff established a
quid pro
quo claim, the Courts of Appeals held, the employer was subject
to vicarious liability. See
Davis v.
Sioux City,
115 F.3d
1365, 1367
(CA8 1997);
Nichols v.
Frank,
42 F.3d
503, 513
514 (CA9 1994);
Bouton v.
BMW of North
America, Inc., 29 F. 3d 103, 106-107
(CA3 1994);
Sauers v.
Salt Lake County, 1
F.3d 1122, 1127 (CAlO 1993);
Kauffman v.
Allied
Signal, Inc., 970 F.2d
178, 185-186
(CA6), cert. denied, 506 U. S. 1041 (1992);
Steele v.
Offshore Shipbuilding, Inc., 867 F.2d
1311, 1316 (CAll 1989). The rule encouraged Title VII
plaintiffs to state their claims as
quid pro quo claims,
which in turn put expansive pressure on the definition. The
equivalence of the
quid pro quo label and vicarious
liability is illustrated by this case. The question presented on
certiorari is whether Ellerth can state a claim of
quid pro
quo harassment, but the issue of real concern to the parties is
whether Burlington has vicarious liability for Slowik's alleged
misconduct, rather than liability limited to its own negligence.
The question presented for certiorari asks:
"Whether a claim of quid pro quo sexual harassment may be
stated under Title VII ... where the plaintiff employee has neither
submitted to the sexual advances of the alleged harasser nor
suffered any tangible effects on the compensation, terms,
conditions or privileges of employment as a consequence of a
refusal to submit to those advances?" Pet. for Cert. i.
We do not suggest the terms
quid pro quo and hostile work
environment are irrelevant to Title VII litigation. To the extent
they illustrate the distinction between cases involving a threat
which is carried out and offensive conduct in general, the terms
are relevant when there is a threshold question whether a plaintiff
can prove discrimination in violation of Title VII. When a
plaintiff proves that a tangible employment action resulted from a
refusal to submit to a supervisor's sexual demands, he or she
establishes that the
754
employment decision itself constitutes a change in the terms and
conditions of employment that is actionable under Title VII. For
any sexual harassment preceding the employment decision to be
actionable, however, the conduct must be severe or pervasive.
Because Ellerth's claim involves only unfulfilled threats, it
should be categorized as a hostile work environment claim which
requires a showing of severe or pervasive conduct. See
Oncale v.
Sundowner Offshore Services, Inc., 523 U. S. 75,81 (1998);
Harris v.
Forklift Systems, Inc., 510 U. S. 17, 21 (1993).
For purposes of this case, we accept the District Court's finding
that the alleged conduct was severe or pervasive. See
supra,
at 749. The case before us involves numerous alleged threats, and
we express no opinion as to whether a single unfulfilled threat is
sufficient to constitute discrimination in the terms or conditions
of employment.
When we assume discrimination can be proved, however, the
factors we discuss below, and not the categories
quid pro
quo and hostile work environment, will be controlling on the
issue of vicarious liability. That is the question we must
resolve.
III
We must decide, then, whether an employer has vicarious
liability when a supervisor creates a hostile work environment by
making explicit threats to alter a subordinate's terms or
conditions of employment, based on sex, but does not fulfill the
threat. We turn to principles of agency law, for the term
"employer" is defined under Title VII to include "agents." 42 U. S.
C. § 2000e(b); see
Meritor, supra, at 72. In express terms,
Congress has directed federal courts to interpret Title VII based
on agency principles. Given such an explicit instruction, we
conclude a uniform and predictable standard must be established as
a matter of federal law. We rely "on the general common law of
agency, rather than on the law of any particular State, to give
meaning to these
755
terms."
Community for Creative Non-Violence v.
Reid, 490 U.
S. 730, 740 (1989). The resulting federal rule, based on a body
of case law developed over time, is statutory interpretation
pursuant to congressional direction. This is not 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."
Atherton v.
FDIC, 519 U. S. 213, 218
(1997). State-court decisions, applying state employment
discrimination law, may be instructive in applying general agency
principles, but, it is interesting to note, in many cases their
determinations of employer liability under state law rely in large
part on federal-court decisions under Title VII.
E. g.,
Arizona v.
Schallock, 189 Ariz. 250, 259, 941 P. 2d
1275, 1284 (1997);
Lehmann v.
Toys 'R' Us, Inc., 132
N. J. 587, 622, 626 A. 2d 445, 463 (1993);
Thompson v.
Berta Enterprises, Inc., 72 Wash. App. 531, 537-539, 864
As
Meritor acknowledged, the Restatement (Second) of
Agency (1957) (hereinafter Restatement) is a useful beginning point
for a discussion of general agency principles. 477 U. S., at 72.
Since our decision in
Meritor, federal courts have explored
agency principles, and we find useful instruction in their
decisions, noting that "common-law principles may not be
transferable in all their particulars to Title VII."
Ibid.
The EEOC has issued Guidelines governing sexual harassment claims
under Title VII, but they provide little guidance on the issue of
employer liability for supervisor harassment. See 29 CFR §
1604.11(c) (1997) (vicarious liability for supervisor harassment
turns on "the particular employment relationship and the job
functions performed by the individual").
A
Section 219(1) of the Restatement sets out a central principle
of agency law:
756
"A master is subject to liability for the torts of his servants
committed while acting in the scope of their employment."
An employer may be liable for both negligent and intentional
torts committed by an employee within the scope of his or her
employment. Sexual harassment under Title VII presupposes
intentional conduct. While early decisions absolved employers of
liability for the intentional torts of their employees, the law now
imposes liability where the employee's "purpose, however misguided,
is wholly or in part to further the master's business." W. Keeton,
D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of
Torts § 70, p. 505 (5th ed. 1984) (hereinafter Prosser and Keeton
on Torts). In applying scope of employment principles to
intentional torts, however, it is accepted that "it is less likely
that a willful tort will properly be held to be in the course of
employment and that the liability of the master for such torts will
naturally be more limited." F. Mechem, Outlines of the Law of
Agency § 394, p. 266 (P. Mechem 4th ed. 1952). The Restatement
defines conduct, including an intentional tort, to be within the
scope of employment when "actuated, at least in part, by a purpose
to serve the [employer]," even if it is forbidden by the employer.
Restatement §§ 228(1)(c), 230. For example, when a salesperson lies
to a customer to make a sale, the tortious conduct is within the
scope of employment because it benefits the employer by increasing
sales, even though it may violate the employer's policies. See
Prosser and Keeton on Torts § 70, at 505-506.
As Courts of Appeals have recognized, a supervisor acting out of
gender-based animus or a desire to fulfill sexual urges may not be
actuated by a purpose to serve the employer. See,
e. g.,
Harrison v.
Eddy Potash, Inc., 112
F.3d 1437, 1444 (CAlO 1997), vacated on other grounds,
post, p. 947;
Torres v.
Pisano, 116 F.3d
625, 634, n. 10
(CA2 1997). But see
Kauffman v.
Allied Signal, Inc., 970 F. 2d, at 184-185 (holding
harassing supervisor acted within scope of employment,
757
but employer was not liable because of its quick and effective
remediation). The harassing supervisor often acts for personal
motives, motives unrelated and even antithetical to the objectives
of the employer. Cf. Mechem,
supra, § 368 ("[F]or the time
being [the supervisor] is conspicuously and unmistakably seeking a
personal end"); see also Restatement § 235, Illustration 2 (tort
committed while "[a]cting purely from personal ill will" not within
the scope of employment); id., Illustration 3 (tort committed in
retaliation for failing to pay the employee a bribe not within the
scope of employment). There are instances, of course, where a
supervisor engages in unlawful discrimination with the purpose,
mistaken or otherwise, to serve the employer.
E. g., Sims v.
Montgomery County Comm'n, 766 F. Supp. 1052, 1075 (MD Ala.
1990) (supervisor acting in scope of employment where employer has
a policy of discouraging women from seeking advancement and "sexual
harassment was simply a way of furthering that policy").
The concept of scope of employment has not always been construed
to require a motive to serve the employer. E. g.,
Ira S.
Bushey &
Sons, Inc. v.
United States,
398 F.2d
167, 172 (CA2 1968). Federal courts have nonetheless found
similar limitations on employer liability when applying the agency
laws of the States under the Federal Tort Claims Act, which makes
the Federal Government liable for torts committed by employees
within the scope of employment. 28 U. S. C. § 1346(b); see,
e.
g., Jamison v.
Wiley, 14 F.3d
222, 237 (CA4 1994) (supervisor's unfair criticism of
subordinate's work in retaliation for rejecting his sexual advances
not within scope of employment);
Wood v.
United States,
995 F. 2d 1122, 1123 (CA1 1993) (Breyer, C. J.) (sexual
harassment amounting to assault and battery "clearly outside the
scope of employment"); see also 2 L. Jayson & R. Longstreth,
Handling Federal Tort Claims § 9.07[4], p. 9-211 (1998).
The general rule is that sexual harassment by a supervisor is
not conduct within the scope of employment.
758
B
Scope of employment does not define the only basis for employer
liability under agency principles. In limited circumstances, agency
principles impose liability on employers even where employees
commit torts outside the scope of employment. The principles are
set forth in the much-cited § 219(2) of the Restatement:
"(2) A master is not subject to liability for the torts of his
servants acting outside the scope of their employment, unless:
"(a) the master intended the conduct or the consequences, or
"(b) the master was negligent or reckless, or
"(c) the conduct violated a non-delegable duty of the master,
or
"(d) the servant purported to act or to speak on behalf of the
principal and there was reliance upon apparent authority, or he was
aided in accomplishing the tort by the existence of the agency
relation."
See also § 219, Comment
e (Section 219(2) "enumerates the
situations in which a master may be liable for torts of servants
acting solely for their own purposes and hence not in the scope of
employment").
Subsection (a) addresses direct liability, where the employer
acts with tortious intent, and indirect liability, where the
agent's high rank in the company makes him or her the employer's
alter ego. None of the parties contend Slowik's rank imputes
liability under this principle. There is no contention,
furthermore, that a nondelegable duty is involved. See § 219(2)(c).
So, for our purposes here, subsections (a) and (c) can be put
aside.
Subsections (b) and (d) are possible grounds for imposing
employer liability on account of a supervisor's acts and must be
considered. Under subsection (b), an employer is liable when the
tort is attributable to the employer's own negli-
759
gence. § 219(2)(b). Thus, although a supervisor's sexual
harassment is outside the scope of employment because the conduct
was for personal motives, an employer can be liable, nonetheless,
where its own negligence is a cause of the harassment. An employer
is negligent with respect to sexual harassment if it knew or should
have known about the conduct and failed to stop it. Negligence sets
a minimum standard for employer liability under Title VII; but
Ellerth seeks to invoke the more stringent standard of vicarious
liability.
Section 219(2)(d) concerns vicarious liability for intentional
torts committed by an employee when the employee uses apparent
authority (the apparent authority standard), or when the employee
"was aided in accomplishing the tort by the existence of the agency
relation" (the aided in the agency relation standard).
Ibid.
As other federal decisions have done in discussing vicarious
liability for supervisor harassment,
e. g.,
Henson v.
Dundee, 682 F.2d
897, 909 (CAll 1982), we begin with § 219(2)(d).
C
As a general rule, apparent authority is relevant where the
agent purports to exercise a power which he or she does not have,
as distinct from where the agent threatens to misuse actual power.
Compare Restatement § 6 (defining "power") with § 8 (defining
"apparent authority"). In the usual case, a supervisor's harassment
involves misuse of actual power, not the false impression of its
existence. Apparent authority analysis therefore is inappropriate
in this context. If, in the unusual case, it is alleged there is a
false impression that the actor was a supervisor, when he in fact
was not, the victim's mistaken conclusion must be a reasonable one.
Restatement § 8, Comment
c ("Apparent authority exists only
to the extent it is reasonable for the third person dealing with
the agent to believe that the agent is authorized"). When a party
seeks to impose vicarious liabil-
760
ity based on an agent's misuse of delegated authority, the
Restatement's aided in the agency relation rule, rather than the
apparent authority rule, appears to be the appropriate form of
analysis.
D
We turn to the aided in the agency relation standard. In a
sense, most workplace tortfeasors are aided in accomplishing their
tortious objective by the existence of the agency relation:
Proximity and regular contact may afford a captive pool of
potential victims. See
Gary v.
Long, 59 F.3d
1391, 1397 (CADC 1995). Were this to satisfy the aided in the
agency relation standard, an employer would be subject to vicarious
liability not only for all supervisor harassment, but also for all
co-worker harassment, a result enforced by neither the EEOC nor any
court of appeals to have considered the issue. See,
e. g.,
Blankenship v.
Parke Care Centers, Inc., 123 F.3d
868, 872 (CA6 1997), cert. denied, 522 U. S. 1110 (1998) (sex
discrimination);
McKenzie v.
Illinois Dept. of Transp.,
92 F. 3d 473, 480 (CA7 1996) (sex discrimination);
Daniels v.
Essex Group, Inc., 937
F.2d 1264, 1273 (CA7 1991) (race discrimination); see also 29
CFR § 1604.11(d) (1997) ("knows or should have known" standard of
liability for cases of harassment between "fellow employees"). The
aided in the agency relation standard, therefore, requires the
existence of something more than the employment relation
itself.
At the outset, we can identify a class of cases where, beyond
question, more than the mere existence of the employment relation
aids in commission of the harassment: when a supervisor takes a
tangible employment action against the subordinate. Every Federal
Court of Appeals to have considered the question has found
vicarious liability when a discriminatory act results in a tangible
employment action. See,
e. g., Sauers v.
Salt Lake
County, 1 F.3d
1122, 1127 (CAlO 1993) (" 'If the plaintiff can show that she
suffered an economic injury from her supervisor's actions, the
employer becomes strictly liable without any further showing ... '
").
761
In
Meritor, we acknowledged this consensus. See 477 U.
S., at 70-71 ("[T]he courts have consistently held employers liable
for the discriminatory discharges of employees by supervisory
personnel, whether or not the employer knew, or should have known,
or approved of the supervisor's actions"). Although few courts have
elaborated how agency principles support this rule, we think it
reflects a correct application of the aided in the agency relation
standard.
In the context of this case, a tangible employment action would
have taken the form of a denial of a raise or a promotion. The
concept of a tangible employment action appears in numerous cases
in the Courts of Appeals discussing claims involving race, age, and
national origin discrimination, as well as sex discrimination.
Without endorsing the specific results of those decisions, we think
it prudent to import the concept of a tangible employment action
for resolution of the vicarious liability issue we consider here. A
tangible employment action constitutes a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits. Compare
Crady v.
Liberty Nat. Bank &
Trust Co. of
Ind., 993 F.2d
132, 136
(CA7 1993) ("A materially adverse change might
be indicated by a termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a
particular situation"), with
Flaherty v.
Gas Research
Institute, 31 F.3d
451, 456
(CA7 1994) (a "bruised ego" is not enough),
Kocsis v.
Multi-Care Management, Inc., 97 F.3d
876, 887 (CA6 1996) (demotion without change in pay, benefits,
duties, or prestige insufficient), and
Harlston v.
McDonnell Douglas Corp., 37 F.3d
379, 382
(CA8 1994) (reassignment to more inconvenient
job insufficient).
When a supervisor makes a tangible employment decision, there is
assurance the injury could not have been inflicted
762
absent the agency relation. A tangible employment action in most
cases inflicts direct economic harm. As a general proposition, only
a supervisor, or other person acting with the authority of the
company, can cause this sort of injury. A co-worker can break a
co-worker's arm as easily as a supervisor, and anyone who has
regular contact with an employee can inflict psychological injuries
by his or her offensive conduct. See
Gary, supra, at 1397;
Henson, 682 F. 2d, at 910;
Barnes v.
Costle,
561 F.2d
983, 996
(CADC 1977) (MacKinnon, J., concurring). But
one co-worker (absent some elaborate scheme) cannot dock another's
pay, nor can one co-worker demote another. Tangible employment
actions fall within the special province of the supervisor. The
supervisor has been empowered by the company as a distinct class of
agent to make economic decisions affecting other employees under
his or her control.
Tangible employment actions are the means by which the
supervisor brings the official power of the enterprise to bear on
subordinates. A tangible employment decision requires an official
act of the enterprise, a company act. The decision in most cases is
documented in official company records, and may be subject to
review by higher level supervisors. E. g.,
Shager v.
Upjohn Co., 913 F.2d
398, 405
(CA7 1990) (noting that the supervisor did not
fire plaintiff; rather, the Career Path Committee did, but the
employer was still liable because the committee functioned as the
supervisor's "cat'spaw"). The supervisor often must obtain the
imprimatur of the enterprise and use its internal processes. See
Kotcher v.
Rosa &
Sullivan Appliance Center,
Inc., 957 F.2d
59,
62 (CA2 1992) ("From the perspective of the
employee, the supervisor and the employer merge into a single
entity").
For these reasons, a tangible employment action taken by the
supervisor becomes for Title VII purposes the act of the employer.
Whatever the exact contours of the aided in the agency relation
standard, its requirements will always be met when a supervisor
takes a tangible employment action
763
against a subordinate. In that instance, it would be implausible
to interpret agency principles to allow an employer to escape
liability, as
Meritor itself appeared to acknowledge. See
supra, at 760-761.
Whether the agency relation aids in commission of supervisor
harassment which does not culminate in a tangible employment action
is less obvious. Application of the standard is made difficult by
its malleable terminology, which can be read to either expand or
limit liability in the context of supervisor harassment. On the one
hand, a supervisor's power and authority invests his or her
harassing conduct with a particular threatening character, and in
this sense, a supervisor always is aided by the agency relation.
See
Meritor, 477 U. S., at 77 (Marshall, J., concurring in
judgment) ("[I]t is precisely because the supervisor is understood
to be clothed with the employer's authority that he is able to
impose unwelcome sexual conduct on subordinates"). On the other
hand, there are acts of harassment a supervisor might commit which
might be the same acts a coemployee would commit, and there may be
some circumstances where the supervisor's status makes little
difference.
It is this tension which, we think, has caused so much confusion
among the Courts of Appeals which have sought to apply the aided in
the agency relation standard to Title VII cases. The aided in the
agency relation standard, however, is a developing feature of
agency law, and we hesitate to render a definitive explanation of
our understanding of the standard in an area where other important
considerations must affect our judgment. In particular, we are
bound by our holding in
Meritor that agency principles
constrain the imposition of vicarious liability in cases of
supervisory harassment. See id., at 72 ("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"). Congress has not altered
Mer-
764
itor's rule even though it has made significant
amendments to Title VII in the interim. See
Illinois Brick
Co. v.
Illinois, 431 U. S. 720, 736 (1977)
("[W]e must bear in mind that considerations of
stare
decisis weigh heavily in the area of statutory construction,
where Congress is free to change this Court's interpretation of its
legislation").
Although
Meritor suggested the limitation on employer
liability stemmed from agency principles, the Court acknowledged
other considerations might be relevant as well. See 477 U. S., at
72 ("common-law principles may not be transferable in all their
particulars to Title VII"). For example, Title VII is designed to
encourage the creation of antiharassment policies and effective
grievance mechanisms. Were employer liability to depend in part on
an employer's effort to create such procedures, it would effect
Congress' intention to promote conciliation rather than litigation
in the Title VII context, see
EEOC v.
Shell Oil Co.,
466 U. S. 54, 77
(1984), and the EEOC's policy of encouraging the development of
grievance procedures. See 29 CFR § 1604.11(f) (1997); EEOC Policy
Guidance on Sexual Harassment, 8 BNA FEP Manual 405:6699 (Mar. 19,
1990). To the extent limiting employer liability could encourage
employees to report harassing conduct before it becomes severe or
pervasive, it would also serve Title VII's deterrent purpose. See
McKennon v.
Nashville Banner Publishing Co., 513 U. S. 352, 358
(1995). As we have observed, Title VII borrows from tort law the
avoidable consequences doctrine, see
Ford Motor Co. v.
EEOC, 458 U.
S. 219, 231, n. 15 (1982), and the considerations which animate
that doctrine would also support the limitation of employer
liability in certain circumstances.
In order to accommodate the agency principles of vicarious
liability for harm caused by misuse of supervisory authority, as
well as Title VII's equally basic policies of encouraging
forethought by employers and saving action by objecting employees,
we adopt the following holding in this case and in
Faragher
v.
Boca Raton, post, p. 775, also decided today.
765
An employer is subject to vicarious liability to a victimized
employee for an actionable hostile environment created by a
supervisor with immediate (or successively higher) authority over
the employee. When no tangible employment action is taken, a
defending employer may raise an affirmative defense to liability or
damages, subject to proof by a preponderance of the evidence, see
Fed. Rule Civ. Proc. S(c). The defense comprises two necessary
elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise. While proof that an
employer had promulgated an antiharassment policy with complaint
procedure is not necessary in every instance as a matter of law,
the need for a stated policy suitable to the employment
circumstances may appropriately be addressed in any case when
litigating the first element of the defense. And while proof that
an employee failed to fulfill the corresponding obligation of
reasonable care to avoid harm is not limited to showing an
unreasonable failure to use any complaint procedure provided by the
employer, a demonstration of such failure will normally suffice to
satisfy the employer's burden under the second element of the
defense. No affirmative defense is available, however, when the
supervisor's harassment culminates in a tangible employment action,
such as discharge, demotion, or undesirable reassignment.
IV
Relying on existing case law which held out the promise of
vicarious liability for all
quid pro quo claims, see
supra, at 752-753, Ellerth focused all her attention in the
Court of Appeals on proving her claim fit within that category.
Given our explanation that the labels
quid pro quo and
hostile work environment are not controlling for purposes of
establishing employer liability, see
supra, at 754,
Ellerth
766
should have an adequate opportunity to prove she has a claim for
which Burlington is liable.
Although Ellerth has not alleged she suffered a tangible
employment action at the hands of Slowik, which would deprive
Burlington of the availability of the affirmative defense, this is
not dispositive. In light of our decision, Burlington is still
subject to vicarious liability for Slowik's activity, but
Burlington should have an opportunity to assert and prove the
affirmative defense to liability. See
supra, at 765.
For these reasons, we will affirm the judgment of the Court of
Appeals, reversing the grant of summary judgment against Ellerth.
On remand, the District Court will have the opportunity to decide
whether it would be appropriate to allow Ellerth to amend her
pleading or supplement her discovery.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE GINSBURG, concurring in the judgment.
I agree with the Court's ruling that "the labels
quid pro
quo and hostile work environment are not controlling for
purposes of establishing employer liability."
Ante, at 765.
I also subscribe to the Court's statement of the rule governing
employer liability,
ibid., which is substantively identical
to the rule the Court adopts in
Faragher v.
Boca Raton,
post, p.775.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
The Court today manufactures a rule that employers are
vicariously liable if supervisors create a sexually hostile work
environment, subject to an affirmative defense that the Court
barely attempts to define. This rule applies even if the employer
has a policy against sexual harassment, the employee knows about
that policy, and the employee never
767
informs anyone in a position of authority about the supervisor's
conduct. As a result, employer liability under Title VII is judged
by different standards depending upon whether a sexually or
racially hostile work environment is alleged. The standard of
employer liability should be the same in both instances: An
employer should be liable if, and only if, the plaintiff proves
that the employer was negligent in permitting the supervisor's
conduct to occur.
I
Years before sexual harassment was recognized as
"discriminat[ion] ... because of ... sex," 42 U. s. C. §
2000e2(a)(1), the Courts of Appeals considered whether, and when, a
racially hostile work environment could violate Title VII.1 In the
landmark case
Rogers v.
EEOC, 454
F.2d 234 (1971), cert. denied, 406 U. S. 957 (1972), the Court
of Appeals for the Fifth Circuit held that the practice of racially
segregating patients in a doctor's office could amount to
discrimination in "'the terms, conditions, or privileges'" of
employment, thereby violating Title VII. 454 F. 2d, at 238 (quoting
42 U. S. C. § 2000e-2(a)(1)). The principal opinion in the case
concluded that employment discrimination was not limited to the
"isolated and distinguishable events" of "hiring, firing, and
promoting." 454 F. 2d, at 238 (opinion of Goldberg, J.). Rather,
Title VII could also be violated by a work environment "heavily
polluted with discrimination," because of the deleterious effects
of such an atmosphere on an employee's well-being.
Ibid.
Accordingly, after
Rogers, a plaintiff claiming
employment discrimination based upon race could assert a claim for
a racially hostile work environment, in addition to the classic
1 This sequence of events is not surprising, given that the
primary goal of the Civil Rights Act of 1964 was to eradicate race
discrimination and that the statute's ban on sex discrimination was
added as an eleventh-hour amendment in an effort to kill the bill.
See
Barnes v.
Costle, 561 F.2d
983, 987 (CADC 1977).
768
claim of so-called "disparate treatment." A disparate treatment
claim required a plaintiff to prove an adverse employment
consequence and discriminatory intent by his employer. See 1 B.
Lindemann & P. Grossman, Employment Discrimination Law 10-11
(3d ed. 1996). A hostile environment claim required the plaintiff
to show that his work environment was so pervaded by racial
harassment as to alter the terms and conditions of his employment.
See,
e. g., Snell v.
Suffolk Cty., 782 F.2d
1094, 1103
(CA2 1986) ("To establish a hostile
atmosphere, ... plaintiffs must prove more than a few isolated
incidents of racial enmity");
Johnson v.
Bunny Bread
Co., 646 F.2d
1250, 1257
(CA8 1981) (no violation of Title VII from
infrequent use of racial slurs). This is the same standard now used
when determining whether sexual harassment renders a work
environment hostile. See
Harris v.
Forklift Systems,
Inc., 510 U. S.
17, 21 (1993) (actionable sexual harassment occurs when the
workplace is
"permeated with discriminatory intimidation,
ridicule, and insult" (emphasis added; internal quotation marks and
citation omitted)).
In race discrimination cases, employer liability has turned on
whether the plaintiff has alleged an adverse employment
consequence, such as firing or demotion, or a hostile work
environment. If a supervisor takes an adverse employment action
because of race, causing the employee a tangible job detriment, the
employer is vicariously liable for resulting damages. See
ante, at 760-761. This is because such actions are company
acts that can be performed only by the exercise of specific
authority granted by the employer, and thus the supervisor acts as
the employer. If, on the other hand, the employee alleges a
racially hostile work environment, the employer is liable only for
negligence: that is, only if the employer knew, or in the exercise
of reasonable care should have known, about the harassment and
failed to take remedial action. See,
e. g., Dennis v.
Cty. of Fairfax, 55 F.3d
151, 153
(CA4 1995);
Davis v.
Monsanto
Chemical Co.,
769
858 F.2d
345, 349 (CA6 1988), cert. denied, 490 U. S. 1110 (1989).
Liability has thus been imposed only if the employer is blameworthy
in some way. See,
e. g., Davis v.
Monsanto Chemical Co.,
supra, at 349;
Snell v.
Suffolk Cty., supra, at
1104; DeGrace v.
Rumsfeld, 614
F.2d 796, 805
(CA1 1980).
This distinction applies with equal force in cases of sexual
harassment.2 When a supervisor inflicts an adverse employment
consequence upon an employee who has rebuffed his advances, the
supervisor exercises the specific authority granted to him by his
company. His acts, therefore, are the company's acts and are
properly chargeable to it. See
123 F.3d
490, 514
(CA7 1997) (Posner, C. J., dissenting);
ante, at 762 ("Tangible employment actions fall within the
special province of the supervisor. The supervisor has been
empowered by the company as a distinct class of agent to make
economic decisions affecting other employees under his or her
control").
If a supervisor creates a hostile work environment, however, he
does not act for the employer. As the Court concedes, a
supervisor's creation of a hostile work environment is neither
within the scope of his employment, nor part of his apparent
authority. See
ante, at 755-760. Indeed, a hostile work
environment is antithetical to the interest of the employer. In
such circumstances, an employer should be liable only if it has
been negligent. That is, liability should attach only if the
employer either knew, or in the exercise of
2 The Courts of Appeals relied on racial harassment cases when
analyzing early claims of discrimination based upon a supervisor's
sexual harassment. For example, when the Court of Appeals for the
District of Columbia Circuit held that a work environment poisoned
by a supervisor's "sexually stereotyped insults and demeaning
propositions" could itself violate Title VII, its principal
authority was Judge Goldberg's opinion in
Rogers v.
EEOC, 454 F.2d
234 (CA5 1971). See
Bundy v.
Jackson,
641 F.2d
934,944 (CADC 1981); see also
Henson v.
Dundee,
682 F.2d
897, 901 (CAll 1982). So, too, this Court relied on
Rogers when in
Meritor Savings Bank, FSB v.
Vinson, 477 U.
S. 57 (1986), it recognized a cause of action under Title VII
for sexual harassment. See id., at 65-66.
770
reasonable care should have known, about the hostile work
environment and failed to take remedial action.3
Sexual harassment is simply not something that employers can
wholly prevent without taking extraordinary measures-constant video
and audio surveillance, for examplethat would revolutionize the
workplace in a manner incompatible with a free society. See 123 F.
3d, at 513 (Posner, C. J., dissenting). Indeed, such measures could
not even detect incidents of harassment such as the comments Slowik
allegedly made to respondent in a hotel bar. The most that
employers can be charged with, therefore, is a duty to act
reasonably under the circumstances. As one court recognized in
addressing an early racial harassment claim:
"It may not always be within an employer's power to guarantee an
environment free from all bigotry .... [H]e can let it be known,
however, that racial harassment will not be tolerated, and he can
take all reasonable measures to enforce this policy .... But once
an employer has in good faith taken those measures which are both
feasible and reasonable under the circumstances to combat the
offensive conduct we do not think he can be charged with
discriminating on the basis of race." DeGrace v.
Rumsfeld, 614 F.2d
796, 805 (1980).
3 I agree with the Court that the doctrine of
quid pro
quo sexual harassment is irrelevant to the issue of an
employer's vicarious liability. I do not, however, agree that the
distinction between hostile work environment and
quid pro
quo sexual harassment is relevant "when there is a threshold
question whether a plaintiff can prove discrimination in violation
of Title VII."
Ante, at 753. A supervisor's threat to take
adverse action against an employee who refuses his sexual demands,
if never carried out, may create a hostile work environment, but
that is all. Cases involving such threats, without more, should
therefore be analyzed as hostile work environment cases only. If,
on the other hand, the supervisor carries out his threat and causes
the plaintiff a job detriment, the plaintiff may have a disparate
treatment claim under Title VII. See E. Scalia, The Strange Career
of
Quid Pro Quo Sexual Harassment, 21 Harv. J. L. & Pub.
Policy 307, 309-314 (1998).
771
Under a negligence standard, Burlington cannot be held liable
for Slowik's conduct. Although respondent alleged a hostile work
environment, she never contended that Burlington had been negligent
in permitting the harassment to occur, and there is no question
that Burlington acted reasonably under the circumstances. The
company had a policy against sexual harassment, and respondent
admitted that she was aware of the policy but nonetheless failed to
tell anyone with authority over Slowik about his behavior. See
ante, at 748. Burlington therefore cannot be charged with
knowledge of Slowik's alleged harassment or with a failure to
exercise reasonable care in not knowing about it.
II
Rejecting a negligence standard, the Court instead imposes a
rule of vicarious employer liability, subject to a vague
affirmative defense, for the acts of supervisors who wield no
delegated authority in creating a hostile work environment. This
rule is a whole-cloth creation that draws no support from the legal
principles on which the Court claims it is based. Compounding its
error, the Court fails to explain how employers can rely upon the
affirmative defense, thus ensuring a continuing reign of confusion
in this important area of the law.
In justifying its holding, the Court refers to our comment in
Meritor Savings Bank, FSB v.
Vinson, 477 U. S. 57 (1986), that
the lower courts should look to "agency principles" for guidance in
determining the scope of employer liability, id., at 72. The Court
then interprets the term "agency principles" to mean the
Restatement (Second) of Agency (1957). The Court finds two portions
of the Restatement to be relevant: § 219(2)(b), which provides that
a master is liable for his servant's torts if the master is
reckless or negligent, and § 219(2)(d), which states that a master
is liable for his servant's torts when the servant is "aided in
accomplishing the tort by the existence of the agency relation."
The Court
772
appears to reason that a supervisor is "aided ... by ... the
agency relation" in creating a hostile work environment because the
supervisor's "power and authority invests his or her harassing
conduct with a particular threatening character."
Ante, at
763.
Section 219(2)(d) of the Restatement provides no basis
whatsoever for imposing vicarious liability for a supervisor's
creation of a hostile work environment. Contrary to the Court's
suggestions, the principle embodied in § 219(2)(d) has nothing to
do with a servant's "power and authority," nor with whether his
actions appear "threatening." Rather, as demonstrated by the
Restatement's illustrations, liability under § 219(2)(d) depends
upon the plaintiff's belief that the agent acted in the ordinary
course of business or within the scope of his apparent authority.4
In this day and age, no sexually harassed employee can reasonably
believe that a harassing supervisor is conducting the official
business of the company or acting on its behalf. Indeed, the Court
admits as much in demonstrating why sexual harassment is not
committed within the scope of a supervisor's employment and is not
part of his apparent authority. See
ante, at 755-760.
Thus although the Court implies that it has found guidance in
both precedent and statute-see
ante, at 755 ("The resulting
federal rule, based on a body of case law developed over time, is
statutory interpretation pursuant to congressional direction")-its
holding is a product of willful policymaking, pure and simple. The
only agency principle that justifies imposing employer liability in
this context is the principle
4 See Restatement § 219, Comment
e; § 261, Comment
a (principal liable for an agent's fraud if "the agent's
position facilitates the consummation of the fraud, 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 business confided to him"); § 247, Illustrations
(newspaper liable for a defamatory editorial published by editor
for his own purposes).
773
that a master will be liable for a servant's torts if the master
was negligent or reckless in permitting them to occur; and as
noted, under a negligence standard, Burlington cannot be held
liable. See
supra, at 771.
The Court's decision is also in considerable tension with our
holding in
Meritor that employers are not strictly liable
for a supervisor's sexual harassment. See
Meritor Savings Bank,
FSB v.
Vinson, supra, at 72. Although the Court
recognizes an affirmative defense-based solely on its divination of
Title VII's
gestalt, see
ante, at 764-it provides
shockingly little guidance about how employers can actually avoid
vicarious liability. Instead, it issues only Delphic pronouncements
and leaves the dirty work to the lower courts:
"While proof that an employer had promulgated an antiharassment
policy with complaint procedure is not necessary in every instance
as a matter of law, the need for a stated policy suitable to the
employment circumstances may appropriately be addressed in any case
when litigating the first element of the defense. And while proof
that an employee failed to fulfill the corresponding obligation of
reasonable care to avoid harm is not limited to showing an
unreasonable failure to use any complaint procedure provided by the
employer, a demonstration of such failure will normally suffice to
satisfy the employer's burden under the second element of the
defense." Ante, at 765.
What these statements mean for district courts ruling on motions
for summary judgment-the critical question for employers now
subject to the vicarious liability ruleremains a mystery. Moreover,
employers will be liable notwithstanding the affirmative defense,
even though they acted reasonably, so long as the plaintiff
in question fulfilled
her duty of reasonable care to avoid
harm. See
ibid. In practice, therefore, employer liability
very well may be the rule.
774
But as the Court acknowledges, this is the one result that it is
clear Congress did
not intend. See
ante, at 763;
Meritor Savings Bank, FSB v.
Vinson, 477 U. S., at
72.
The Court's holding does guarantee one result: There will be
more and more litigation to clarify applicable legal rules in an
area in which both practitioners and the courts have long been
begging for guidance. It thus truly boggles the mind that the Court
can claim that its holding will effect "Congress' intention to
promote conciliation rather than litigation in the Title VII
context."
Ante, at 764. All in all, to day's decision is an
ironic result for a case that generated eight separate opinions in
the Court of Appeals on a fundamental question, and in which we
granted certiorari "to assist in defining the relevant standards of
employer liability."
Ante, at 751.
***
Popular misconceptions notwithstanding, sexual harassment is not
a freestanding federal tort, but a form of employment
discrimination. As such, it should be treated no differently (and
certainly no better) than the other forms of harassment that are
illegal under Title VII. I would restore parallel treatment of
employer liability for racial and sexual harassment and hold an
employer liable for a hostile work environment only if the employer
is truly at fault. I therefore respectfully dissent.
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