OCTOBER TERM, 1997
Syllabus
FARAGHER
v. CITY OF BOCA RATON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 97-282. Argued March 25, 1998-Decided June 26,1998
After resigning as a lifeguard with respondent City of Boca
Raton (City), petitioner Beth Ann Faragher brought an action
against the City and her immediate supervisors, Bill Terry and
David Silverman, for nominal damages and other relief, alleging,
among other things, that the supervisors had created a "sexually
hostile atmosphere" at work by repeatedly subjecting Faragher and
other female lifeguards to "uninvited and offensive touching," by
making lewd remarks, and by speaking of women in offensive terms,
and that this conduct constituted discrimination in the "terms,
conditions, and privileges" of her employment in violation of Title
VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2(a)(1).
Following a bench trial, the District Court concluded that the
supervisors' conduct was discriminatory harassment sufficiently
serious to alter the conditions of Faragher's employment and
constitute an abusive working environment. The District Court then
held that the City could be held liable for the harassment of its
supervisory employees because the harassment was pervasive enough
to support an inference that the City had "knowledge, or
constructive knowledge," of it; under traditional agency principles
Terry and Silverman were acting as the City's agents when they
committed the harassing acts; and a third supervisor had knowledge
of the harassment and failed to report it to City officials. The
Eleventh Circuit, sitting en banc, reversed. Relying on
Meritor
Savings Bank, FSB v.
Vinson, 477 U. S. 57, and on the
Restatement (Second) of Agency § 219 (1957) (Restatement), the
Court of Appeals held that Terry and Silverman were not acting
within the scope of their employment when they engaged in the
harassing conduct, that their agency relationship with the City did
not facilitate the harassment, that constructive knowledge of it
could not be imputed to the City because of its pervasiveness or
the supervisor's knowledge, and that the City could not be held
liable for negligence in failing to prevent it.
Held: An employer is vicariously liable for actionable
discrimination caused by a supervisor, but subject to an
affirmative defense looking to the reasonableness of the employer's
conduct as well as that of the plaintiff victim. Pp. 786-810.
(a) While the Court has delineated the substantive contours of
the hostile environment Title VII forbids, see,
e. g.,
Harris v.
Forklift Sys-
776
Syllabus
tems, Inc., 510 U. S. 17,21-22, its
cases have established few definitive rules for determining when an
employer will be liable for a discriminatory environment that is
otherwise actionably abusive. The Court's only discussion to date
of the standards of employer liability came in
Meritor,
supra, where the Court held that traditional agency principles
were relevant for determining employer liability. Although the
Court cited the Restatement §§219-237 with general approval, the
Court cautioned that common-law agency principles might not be
transferable in all their particulars. Pp. 786-792.
(b) Restatement § 219(1) provides that "a master is subject to
liability for the torts of his servants committed while acting in
the scope of their employment." Although Title VII cases in the
Courts of Appeals have typically held, or assumed, that supervisory
sexual harassment falls outside the scope of employment because it
is motivated solely by individual desires and serves no purpose of
the employer, these cases appear to be in tension with others
defining the scope of the employment broadly to hold employers
vicariously liable for employees' intentional torts, including
sexual assaults, that were not done to serve the employer, but were
deemed to be characteristic of its activities or a foreseeable
consequence of its business. This tension is the result of
differing judgments about the desirability of holding an employer
liable for his subordinates' wayward behavior. The proper analysis
here, then, calls not for a mechanical application of indefinite
and malleable factors set forth in the Restatement, but rather an
enquiry into whether it is proper to conclude that sexual
harassment is one of the normal risks of doing business the
employer should bear. An employer can reasonably anticipate the
possibility of sexual harassment occurring in the workplace, and
this might justify the assignment of the costs of this behavior to
the employer rather than to the victim. Two things counsel in favor
of the contrary conclusion, however. First, there is no reason to
suppose that Congress wished courts to ignore the traditional
distinction between acts falling within the scope of employment and
acts amounting to what the older law called frolics or detours from
the course of employment. Second, the lower courts, by uniformly
judging employer liability for co-worker harassment under a
negligence standard, have implicitly treated such harassment
outside the scope of employment. It is unlikely that such treatment
would escape efforts to render them obsolete if the Court held that
harassing supervisors necessarily act within the scope of their
employment. The rationale for doing so would apply when the
behavior was that of coemployees, because the employer generally
benefits from the work of common employees as from the work of
supervisors. The answer to this argument might be that the scope of
supervisory employment may be treated separately because super-
777
visors have special authority enhancing their capacity to harass
and the employer can guard against their misbehavior more easily.
This answer, however, implicates an entirely separate category of
agency law, considered in the next section. Given the virtue of
categorical clarity, it is better to reject reliance on misuse of
supervisory authority (without more) as irrelevant to the
scope-of-employment analysis. Pp. 793-801.
(c) The Court of Appeals erred in rejecting a theory of
vicarious liability based on § 219(2)(d) of the Restatement, which
provides that an employer "is not subject to liability for the
torts of his servants acting outside the scope of their employment
unless ... the servant purported to act or speak on behalf of the
principal and there was reliance on apparent authority, or he was
aided in accomplishing the tort by the existence of the agency
relation." It makes sense to hold an employer vicariously liable
under Title VII for some tortious conduct of a supervisor made
possible by use of his supervisory authority, and the
aided-byagency-relation principle of § 219(2)(d) provides an
appropriate starting point for determining liability for the kind
of harassment presented here. In a sense a supervisor is always
assisted in his misconduct by the supervisory relationship;
however, the imposition of liability based on the misuse of
supervisory authority must be squared with
Meritor's holding
that an employer is not "automatically" liable for harassment by a
supervisor who creates the requisite degree of discrimination.
There are two basic alternatives to counter the risk of automatic
liability. The first is to require proof of some affirmative
invocation of that authority by the harassing supervisor; the
second is to recognize an affirmative defense to liability in some
circumstances, even when a supervisor has created the actionable
environment. The problem with the first alternative is that there
is not a clear line between the affirmative and merely implicit
uses of supervisory power; such a rule would often lead to close
judgment calls and results that appear disparate if not
contradictory, and the temptation to litigate would be hard to
resist. The second alternative would avoid this particular
temptation to litigate and implement Title VII sensibly by giving
employers an incentive to prevent and eliminate harassment and by
requiring employees to take advantage of the preventive or remedial
apparatus of their employers. Thus, the Court adopts the following
holding in this case and in
Burlington Industries, Inc. v.
Ellerth, ante, p. 742, also decided today. 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 prepon-
778
Syllabus
derance 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, such as discharge, demotion, or undesirable
reassignment. Pp. 801-808.
(d) Under this standard, the Eleventh Circuit's judgment must be
reversed. The District Court found that the degree of hostility in
the work environment rose to the actionable level and was
attributable to Silverman and Terry, and it is clear that these
supervisors were granted virtually unchecked authority over their
subordinates and that Faragher and her colleagues were completely
isolated from the City's higher management. While the City would
have an opportunity to raise an affirmative defense if there were
any serious prospect of its presenting one, it appears from the
record that any such avenue is closed. The District Court found
that the City had entirely failed to disseminate its sexual
harassment policy among the beach employees and that its officials
made no attempt to keep track of the conduct of supervisors, and
the record makes clear that the City's policy did not include any
harassing supervisors assurance that could be bypassed in
registering complaints. Under such circumstances, the Court holds
as a matter of law that the City could not be found to have
exercised reasonable care to prevent the supervisors' harassing
conduct. Although the record discloses two possible grounds upon
which the City might seek to excuse its failure to distribute its
policy and to establish a complaint mechanism, both are
contradicted by the record. The City points to nothing that might
justify a conclusion by the District Court on remand that the City
had exercised reasonable care. Nor is there any reason to remand
for consideration of Faragher's efforts to mitigate her own
damages, since the award to her was solely nominal. Pp.
808-809.
779
(e) There is no occasion to consider whether the supervisors'
knowledge of the harassment could be imputed to the City. Liability
on that theory could not be determined without further factfinding
on remand, whereas the reversal necessary on the supervisory
harassment theory renders any remand for consideration of imputed
knowledge (or of negligence as an alternative to a theory of
vicarious liability) entirely unjustifiable. P. 810.
111 F.3d
1530, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, GINSBURG, and
BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in
which SCALIA, J., joined,
post, p. 810.
William R. Amlong argued the cause for petitioner.
With him on the briefs were Martha F. Davis, Yolanda S. Wu, and
Eric Schnapper.
Irving Gornstein argued the cause for the United States et al.
as amici curiae urging reversal. With him on the brief were
Solicitor General Waxman, Acting Assistant Attorney General Lee,
Deputy Solicitor General Wallace, C. Gregory Stewart, Carolyn L.
Wheeler, and Gail S. Coleman.
Harry A. Rissetto argued the cause for respondent. With him on
the briefs were Peter Buscemi, Mark S. Dichter, Mark A. Srere, and
Victoria E. Houck. *
*Briefs of
amici curiae urging reversal were filed for
the American Federation of Labor and Congress of Industrial
Organizations by
Jonathan P. Hiatt, Marsha S.
Berzon,
and
Laurence Gold; for the Lawyers' Committee for Civil
Rights Under Law et al. by
Marc L. Fleischaker, Jack W Londen,
Norman Redlich, Barbara R. Arnwine, Thomas J.
Henderson,
Richard T. Seymour, Teresa A. Ferrante, and
Steven R.
Shapiro; for the National Employment Lawyers Association by
Margaret A. Harris and
H. Candace Gorman; and for the
National Women's Law Center, Equal Rights Advocates et al. by
Lois G.
Williams, Nancy C.
Libin, Jane L.
Dolkart, and
Marcia D. Greenberger.
Briefs of
amici curiae urging affirmance were filed for
the Chamber of Commerce of the United States by
Stephen A.
Bokat, Robin S.
Conrad, and
Sussan L. Mahallati;
for the Equal Employment Advisory Council by
Ann Elizabeth
Reesman; for the National Association of Manufacturers et al.
by
William J.
Kilberg, Douglas R. Cox, Jan S.
Amundson, and
780
JUSTICE SOUTER delivered the opinion of the Court.
This case calls for identification of the circumstances under
which an employer may be held liable under Title VII of the Civil
Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e
et seq., for the acts of a supervisory employee whose sexual
harassment of subordinates has created a hostile work environment
amounting to employment discrimination. We hold that an employer is
vicariously liable for actionable discrimination caused by a
supervisor, but subject to an affirmative defense looking to the
reasonableness of the employer's conduct as well as that of a
plaintiff victim.
I
Between 1985 and 1990, while attending college, petitioner Beth
Ann Faragher worked part time and during the summers as an ocean
lifeguard for the Marine Safety Section of the Parks and Recreation
Department of respondent, the City of Boca Raton, Florida (City).
During this period, Faragher's immediate supervisors were Bill
Terry, David Silverman, and Robert Gordon. In June 1990, Faragher
resigned.
In 1992, Faragher brought an action against Terry, Silverman,
and the City, asserting claims under Title VII, Rev. Stat. § 1979,
42 U. S. C. § 1983, and Florida law. So far as it concerns the
Title VII claim, the complaint alleged that Terry and Silverman
created a "sexually hostile atmosphere" at the beach by repeatedly
subjecting Faragher and other female lifeguards to "uninvited and
offensive touching," by making lewd remarks, and by speaking of
women in offensive terms. The complaint contained specific
allegations that Terry once said that he would never promote a
woman to the rank of lieutenant, and that Silverman had said to
Faragher, "Date me or clean the toilets for a year." Asserting
that
Quentin Riegal; and for the Society for Human Resource
Management by
Allan H. Weitzman and
Paul
Salvatore.
781
Terry and Silverman were agents of the City, and that their
conduct amounted to discrimination in the "terms, conditions, and
privileges" of her employment, 42 U. S. C. § 2000e2(a)(1), Faragher
sought a judgment against the City for nominal damages, costs, and
attorney's fees.
Following a bench trial, the United States District Court for
the Southern District of Florida found that throughout Faragher's
employment with the City, Terry served as Chief of the Marine
Safety Division, with authority to hire new lifeguards (subject to
the approval of higher management), to supervise all aspects of the
lifeguards' work assignments, to engage in counseling, to deliver
oral reprimands, and to make a record of any such discipline. 864
F. Supp. 1552, 1563-1564 (1994). Silverman was a Marine Safety
lieutenant from 1985 until June 1989, when he became a captain.
I d., at 1555. Gordon began the employment period as a
lieutenant and at some point was promoted to the position of
training captain. In these positions, Silverman and Gordon were
responsible for making the lifeguards' daily assignments, and for
supervising their work and fitness training.
I d., at
1564.
The lifeguards and supervisors were stationed at the city beach
and worked out of the Marine Safety Headquarters, a small one-story
building containing an office, a meeting room, and a single, unisex
locker room with a shower.
Id., at 1556. Their work routine
was structured in a "paramilitary configuration," id., at 1564,
with a clear chain of command. Lifeguards reported to lieutenants
and captains, who reported to Terry. He was supervised by the
Recreation Superintendent, who in turn reported to a Director of
Parks and Recreation, answerable to the City Manager.
Id.,
at 1555. The lifeguards had no significant contact with higher city
officials like the Recreation Superintendent.
I d., at
1564.
In February 1986, the City adopted a sexual harassment policy,
which it stated in a memorandum from the City Man-
782
ager addressed to all employees.
Id., at 1560. In May
1990, the City revised the policy and reissued a statement of it.
Ibid. Although the City may actually have circulated the
memos and statements to some employees, it completely failed to
disseminate its policy among employees of the Marine Safety
Section, with the result that Terry, Silverman, Gordon, and many
lifeguards were unaware of it.
Ibid.
From time to time over the course of Faragher's tenure at the
Marine Safety Section, between 4 and 6 of the 40 to 50 lifeguards
were women.
Id., at 1556. During that 5-year period, Terry
repeatedly touched the bodies of female employees without
invitation,
ibid., would put his arm around Faragher, with
his hand on her buttocks, id., at 1557, and once made contact with
another female lifeguard in a motion of sexual simulation, id., at
1556. He made crudely demeaning references to women generally, id.,
at 1557, and once commented disparagingly on Faragher's shape,
ibid. During a job interview with a woman he hired as a
lifeguard, Terry said that the female lifeguards had sex with their
male counterparts and asked whether she would do the same.
Ibid.
Silverman behaved in similar ways. He once tackled Faragher and
remarked that, but for a physical characteristic he found
unattractive, he would readily have had sexual relations with her.
Ibid. Another time, he pantomimed an act of oral sex.
Ibid. Within earshot of the female lifeguards, Silverman
made frequent, vulgar references to women and sexual matters,
commented on the bodies of female lifeguards and beachgoers, and at
least twice told female lifeguards that he would like to engage in
sex with them.
I d., at 1557-1558.
Faragher did not complain to higher management about Terry or
Silverman. Although she spoke of their behavior to Gordon, she did
not regard these discussions as formal complaints to a supervisor
but as conversations with a person she held in high esteem.
Id., at 1559. Other female
783
lifeguards had similarly informal talks with Gordon, but because
Gordon did not feel that it was his place to do so, he did not
report these complaints to Terry, his own supervisor, or to any
other city official.
I d., at 1559-1560. Gordon responded to
the complaints of one lifeguard by saying that "the City just
[doesn't] care."
Id., at 1561.
In April 1990, however, two months before Faragher's
resignation, Nancy Ewanchew, a former lifeguard, wrote to Richard
Bender, the City's Personnel Director, complaining that Terry and
Silverman had harassed her and other female lifeguards.
Id.,
at 1559. Following investigation of this complaint, the City found
that Terry and Silverman had behaved improperly, reprimanded them,
and required them to choose between a suspension without payor the
forfeiture of annual leave.
Ibid.
On the basis of these findings, the District Court concluded
that the conduct of Terry and Silverman was discriminatory
harassment sufficiently serious to alter the conditions of
Faragher's employment and constitute an abusive working
environment.
I d., at 1562-1563. The District Court then
ruled that there were three justifications for holding the City
liable for the harassment of its supervisory employees. First, the
court noted that the harassment was pervasive enough to support an
inference that the City had "knowledge, or constructive knowledge,"
of it.
Id., at 1563. Next, it ruled that the City was liable
under traditional agency principles because Terry and Silverman
were acting as its agents when they committed the harassing acts.
Id., at 1563-1564. Finally, the court observed that Gordon's
knowledge of the harassment, combined with his inaction, "provides
a further basis for imputing liability on
[sic] the City."
Id., at 1564. The District Court then awarded Faragher $1 in
nominal damages on her Title VII claim.
I d., at
1564-1565.
A panel of the Court of Appeals for the Eleventh Circuit
reversed the judgment against the City.
76 F.3d
1155
784
(1996). Although the panel had "no trouble concluding that
Terry's and Silverman's conduct ... was severe and pervasive enough
to create an objectively abusive work environment," id., at 1162,
it overturned the District Court's conclusion that the City was
liable. The panel ruled that Terry and Silverman were not acting
within the scope of their employment when they engaged in the
harassment, id., at 1166, that they were not aided in their actions
by the agency relationship, id., at 1166, n. 14, and that the City
had no constructive knowledge of the harassment by virtue of its
pervasiveness or Gordon's actual knowledge, id., at 1167, and n.
16.
In a 7 -to-5 decision, the full Court of Appeals, sitting en
banc, adopted the panel's conclusion.
111 F.3d
1530 (1997). Relying on our decision in
Meritor Savings
Bank, FSB v.
Vinson, 477 U. S. 57 (1986), and
on the Restatement (Second) of Agency § 219 (1957) (hereinafter
Restatement), the court held that "an employer may be indirectly
liable for hostile environment sexual harassment by a superior: (1)
if the harassment occurs within the scope of the superior's
employment; (2) if the employer assigns performance of a
nondelegable duty to a supervisor and an employee is injured
because of the supervisor's failure to carry out that duty; or (3)
if there is an agency relationship which aids the supervisor's
ability or opportunity to harass his subordinate." 111
Applying these principles, the court rejected Faragher's Title
VII claim against the City. First, invoking standard agency
language to classify the harassment by each supervisor as a
"frolic" unrelated to his authorized tasks, the court found that in
harassing Faragher, Terry and Silverman were acting outside of the
scope of their employment and solely to further their own personal
ends.
Id., at 1536-1537. Next, the court determined that the
supervisors' agency relationship with the City did not assist them
in perpetrating their harassment.
Id., at 1537. Though
noting that "a supervisor is always aided in accomplishing hostile
environment sex-
785
ual harassment by the existence of the agency relationship with
his employer because his responsibilities include close proximity
to and regular contact with the victim," the court held that
traditional agency law does not employ so broad a concept of aid as
a predicate of employer liability, but requires something more than
a mere combination of agency relationship and improper conduct by
the agent.
Ibid. Because neither Terry nor Silverman
threatened to fire or demote Faragher, the court concluded that
their agency relationship did not facilitate their harassment.
Ibid.
The en banc court also affirmed the panel's ruling that the City
lacked constructive knowledge of the supervisors' harassment. The
court read the District Court's opinion to rest on an erroneous
legal conclusion that any harassment pervasive enough to create a
hostile environment must
a fortiori also suffice to charge
the employer with constructive knowledge.
Id., at 1538.
Rejecting this approach, the court reviewed the record and found no
adequate factual basis to conclude that the harassment was so
pervasive that the City should have known of it, relying on the
facts that the harassment occurred intermittently, over a long
period of time, and at a remote location.
Ibid. In
footnotes, the court also rejected the arguments that the City
should be deemed to have known of the harassment through Gordon,
id., at 1538, n. 9, or charged with constructive knowledge because
of its failure to disseminate its sexual harassment policy among
the lifeguards, id., at 1539, n. 11.
Since our decision in
Meritor, Courts of Appeals have
struggled to derive manageable standards to govern employer
liability for hostile environment harassment perpetrated by
supervisory employees. While following our admonition to find
guidance in the common law of agency, as embodied in the
Restatement, the Courts of Appeals have adopted different
approaches. Compare,
e. g., Harrison v.
Eddy Potash,
Inc., 112 F.3d
1437 (CAlO 1997), vacated,
post, p. 947;
111 F.3d
1530 (CAll 1997) (case below);
Gary v.
786
Long, 59 F.3d
1391 (CAD C), cert. denied, 516 U. S. 1011 (1995); and
Karibian v.
Columbia University, 14 F.3d
773 (CA2), cert. denied, 512 U. S. 1213 (1994). We granted
certiorari to address the divergence, 522 U. S. 978 (1997), and now
reverse the judgment of the Eleventh Circuit and remand for entry
of judgment in Faragher's favor.
II A
Under Title VII of the Civil Rights Act of 1964, "[i]t shall be
an unlawful employment practice for an employer ... 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 privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U. S. C. § 2000e-2(a)(1). We have repeatedly
made clear that although the statute mentions specific employment
decisions with immediate consequences, the scope of the prohibition
"'is not limited to "economic" or "tangible" discrimination,'"
Harris v.
Forklift Systems, Inc., 510 U. S. 17, 21 (1993)
(quoting
Meritor Savings Bank, FSB v.
Vinson, supra,
at 64), and that it covers more than "'terms' and 'conditions' in
the narrow contractual sense."
Oncale v.
Sundowner
Offshore Services, Inc., 523 U. S. 75, 78 (1998).
Thus, in
Meritor we held that sexual harassment so "severe
or pervasive" as to "'alter the conditions of [the victim's]
employment and create an abusive working environment'" violates
Title VII. 477 U. S., at 67 (quoting
Henson
In thus holding that environmental claims are covered by the
statute, we drew upon earlier cases recognizing liability for
discriminatory harassment based on race and national origin, see,
e. g., Rogers v.
EEOC, 454 F.2d
234 (CA5 1971), cert. denied, 406 U. S. 957 (1972);
Firefighters Institute for Racial Equality v.
St.
Louis, 549 F.2d
506 (CA8), cert. denied
sub nom. Banta v.
United States, 434 U. S. 819 (1977),
787
just as we have also followed the lead of such cases in
attempting to define the severity of the offensive conditions
necessary to constitute actionable sex discrimination under the
statute. See,
e. g., Rogers, supra, at 238 ("[M]ere
utterance of an ethnic or racial epithet which engenders offensive
feelings in an employee" would not sufficiently alter terms and
conditions of employment to violate Title VII).l See also
Daniels v.
Essex Group, Inc., 937
F.2d 1264, 1271-1272
(CA7 1991);
Davis v.
Monsanto Chemical Co., 858 F.2d
345,
349 (CA6 1988), cert. denied, 490 U. S. 1110
(1989);
Snell v.
Suffolk County, 782 F.2d
1094, 1103
(CA2 1986); 1 B. Lindemann & P. Grossman,
Employment Discrimination Law 349, and nn. 36-37 (3d ed. 1996)
(hereinafter Lindemann & Grossman) (citing cases instructing
that "[d]iscourtesy or rudeness should not be confused with racial
harassment" and that "a lack of racial sensitivity does not, alone,
amount to actionable harassment").
So, in
Harris, we explained that in order to be
actionable under the statute, a sexually objectionable environment
must be both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the
victim in fact did perceive to be so. 510 U. S., at 21-22. We
directed courts to determine whether an environment is sufficiently
hostile or abusive by "looking at all the circumstances," including
the "frequency of the discriminatory conduct; its severity; whether
it is physically threat-
1 Similarly, Courts of Appeals in sexual harassment cases have
properly drawn on standards developed in cases involving racial
harassment. See,
e. g., Carrero v.
New York City Housing
Auth., 890 F.2d
569, 577
(CA2 1989) (citing
Lopez v. S.
B.
Thomas, Inc., 831 F.2d
1184, 1189
(CA2 1987), a case of racial harassment, for
the proposition that incidents of environmental sexual harassment
"must be more than episodic; they must be sufficiently continuous
and concerted in order to be deemed pervasive"). Although racial
and sexual harassment will often take different forms, and
standards may not be entirely interchangeable, we think there is
good sense in seeking generally to harmonize the standards of what
amounts to actionable harassment.
788
ening or humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee's work performance."
Id., at 23. Most recently, we explained that Title VII does
not prohibit "genuine but innocuous differences in the ways men and
women routinely interact with members of the same sex and of the
opposite sex."
Oncale, 523 U. S., at 81. A recurring point
in these opinions is that "simple teasing," id., at 82, offhand
comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the "terms and conditions
of employment. "
These standards for judging hostility are sufficiently demanding
to ensure that Title VII does not become a "general civility code."
Id., at 80. Properly applied, they will filter out
complaints attacking "the ordinary tribulations of the workplace,
such as the sporadic use of abusive language, gender-related jokes,
and occasional teasing." B. Lindemann & D. Kadue, Sexual
Harassment in Employment Law 175 (1992) (hereinafter Lindemann
& Kadue) (footnotes omitted). We have made it clear that
conduct must be extreme to amount to a change in the terms and
conditions of employment, and the Courts of Appeals have heeded
this view. See,
e. g., Carrero v.
New York City Housing
Auth., 890 F.2d
569, 577-578
(CA2 1989);
Moylan v.
Maries
County, 792 F. 2d 746, 749-750 (CA8 1986); See also 1 Lindemann
& Grossman 805-807, n. 290 (collecting cases granting summary
judgment for employers because the alleged harassment was not
actionably severe or pervasive).
While indicating the substantive contours of the hostile
environments forbidden by Title VII, our cases have established few
definite rules for determining when an employer will be liable for
a discriminatory environment that is otherwise actionably abusive.
Given the circumstances of many of the litigated cases, including
some that have come to us, it is not surprising that in many of
them, the issue has been joined over the sufficiency of the abusive
conditions, not the
789
standards for determining an employer's liability for them.
There have, for example, been myriad cases in which District Courts
and Courts of Appeals have held employers liable on account of
actual knowledge by the employer, or highechelon officials of an
employer organization, of sufficiently harassing action by
subordinates, which the employer or its informed officers have done
nothing to stop. See,
e. g.,
Katz v.
Dole,
709 F.2d
251, 256
(CA4 1983) (upholding employer liability
because the "employer's supervisory personnel manifested
unmistakable acquiescence in or approval of the harassment");
EEOC v.
Hacienda Hotel, 881 F.2d
1504, 1516 (CA9 1989) (employer liable where hotel manager did
not respond to complaints about supervisors' harassment);
Hall v.
Gus Constr. Co., 842 F.2d
1010, 1016
(CA8 1988) (holding employer liable for
harassment by co-workers because supervisor knew of the harassment
but did nothing). In such instances, the combined knowledge and
inaction may be seen as demonstrable negligence, or as the
employer's adoption of the offending conduct and its results, quite
as if they had been authorized affirmatively as the employer's
policy. Cf.
Oncale, supra, at 77 (victim reported his
grounds for fearing rape to company's safety supervisor, who turned
him away with no action on complaint).
Nor was it exceptional that standards for binding the employer
were not in issue in
Harris, supra. In that case of
discrimination by hostile environment, the individual charged with
creating the abusive atmosphere was the president of the corporate
employer, 510 U. S., at 19, who was indisputably within that class
of an employer organization's officials who may be treated as the
organization's proxy.
Burns v.
McGregor Electronic
Industries, Inc., 955 F.2d
559, 564
(CA8 1992) (employer-company liable where
harassment was perpetrated by its owner); see
Torres v.
Pisano, 116 F.3d
625, 634-635, and n. 11 (CA2) (noting that a supervisor may
hold a sufficiently high position "in the management hierarchy of
the company for his actions to be imputed
790
automatically to the employer"), cert. denied, 522 U. S. 997
(1997); cf.
Katz, supra, at 255 ("Except in situations where
a proprietor, partner or corporate officer participates personally
in the harassing behavior," an employee must "demonstrat[e] the
propriety of holding the employer liable").
Finally, there is nothing remarkable in the fact that claims
against employers for discriminatory employment actions with
tangible results, like hiring, firing, promotion, compensation, and
work assignment, have resulted in employer liability once the
discrimination was shown. See
Meritor, 477 U. S., at 70-71
(noting that "courts have consistently held employers liable for
the discriminatory discharges of employees by supervisory
personnel, whether or not the employer knew, should have known, or
approved of the supervisor's actions"); id., at 75 (Marshall, J.,
concurring in judgment) ("[W]hen a supervisor discriminatorily
fires or refuses to promote a black employee, that act is, without
more, considered the act of the employer"); see also
Anderson v.
Methodist Evangelical Hospital, Inc.,
464 F.2d
723, 725
(CA6 1972) (imposing liability on employer for
racially motivated discharge by low-level supervisor, although the
"record clearly shows that [its] record in race relations ... is
exemplary").
A variety of reasons have been invoked for this apparently
unanimous rule. Some courts explain, in a variation of the "proxy"
theory discussed above, that when a supervisor makes such
decisions, he "merges" with the employer, and his act becomes that
of the employer. See,
e. g., Kotcher v.
Rosa and Sullivan
Appliance Gtr., Inc., 957 F.2d
59, 62 (CA2 1992) ("The supervisor is deemed to act on behalf
of the employer when making decisions that affect the economic
status of the employee. From the perspective of the employee, the
supervisor and the employer merge into a single entity");
Steele v.
Offshore Shipbuilding, Inc., 867 F.2d
1311, 1316 (CAll 1989) ("When a supervisor requires sexual
favors as a
quid pro quo for job benefits, the supervisor,
by definition, acts as the company"); see also Lindemann &
791
Grossman 776 (noting that courts hold employers "automatically
liable" in
quid pro quo cases because the "supervisor's
actions, in conferring or withholding employment benefits, are
deemed as a matter of law to be those of the employer"). Other
courts have suggested that vicarious liability is proper because
the supervisor acts within the scope of his authority when he makes
discriminatory decisions in hiring, firing, promotion, and the
like. See,
e. g., Shager v.
Upjohn Co., 913 F. 2d
398, 405 (CA7 1990) ("[A] supervisory employee who fires a
subordinate is doing the kind of thing that he is authorized to do,
and the wrongful intent with which he does it does not carry his
behavior so far beyond the orbit of his responsibilities as to
excuse the employer" (citing Restatement § 228)). Others have
suggested that vicarious liability is appropriate because the
supervisor who discriminates in this manner is aided by the agency
relation. See,
e. g.,
Nichols v.
Frank,
42 F.3d
503, 514
(CA9 1994). Finally, still other courts have
endorsed both of the latter two theories. See,
e. g.,
Harrison, 112 F. 3d, at 1443;
Henson, 682 F. 2d, at
910.
The soundness of the results in these cases (and their
continuing vitality), in light of basic agency principles, was
confirmed by this Court's only discussion to date of standards of
employer liability, in
Meritor, supra, which involved a
claim of discrimination by a supervisor's sexual harassment of a
subordinate over an extended period. In affirming the Court of
Appeals's holding that a hostile atmosphere resulting from sex
discrimination is actionable under Title VII, we also anticipated
proceedings on remand by holding agency principles relevant in
assigning employer liability and by rejecting three
per se
rules of liability or immunity. 477 U. S., at 70-72. We observed
that the very definition of employer in Title VII, as including an
"agent," id., at 72, expressed Congress's intent that courts look
to traditional principles of the law of agency in devising
standards of employer liability in those instances where liability
for the actions of a super-
792
visory employee was not otherwise obvious,
ibid., and
although we cautioned that "common-law principles may not be
transferable in all their particulars to Title VII," we cited the
Restatement §§ 219-237 with general approval.
Ibid.
We then proceeded to reject two limitations on employer
liability, while establishing the rule that some limitation was
intended. We held that neither the existence of a company grievance
procedure nor the absence of actual notice of the harassment on the
part of upper management would be dispositive of such a claim;
while either might be relevant to the liability, neither would
result automatically in employer immunity.
Ibid. Conversely,
we held that Title VII placed some limit on employer responsibility
for the creation of a discriminatory environment by a supervisor,
and we held that Title VII does not make employers "always
automatically liable for sexual harassment by their supervisors,"
ibid., contrary to the view of the Court of Appeals, which
had held that "an employer is strictly liable for a hostile
environment created by a supervisor's sexual advances, even though
the employer neither knew nor reasonably could have known of the
alleged misconduct," id., at 69-70.
Meritor's statement of the law is the foundation on which
we build today. Neither party before us has urged us to depart from
our customary adherence to
stare decisis in statutory
interpretation,
Patterson v.
McLean Credit Union, 491
U. S. 164, 172-173 (1989)
(stare decisis has "special force"
in statutory interpretation). And the force of precedent here is
enhanced by Congress's amendment to the liability provisions of
Title VII since the
Meritor decision, without providing any
modification of our holding. Civil Rights Act of 1991, § 102, 105
Stat. 1072, 42 U. S. C. § 1981a; see
Keene Corp. v.
United States, 508 U. S. 200, 212 (1993)
(applying the "presumption that Congress was aware of [prior]
judicial interpretations and, in effect, adopted them"). See also
infra, at 804, n. 4.
793
B
The Court of Appeals identified, and rejected, three possible
grounds drawn from agency law for holding the City vicariously
liable for the hostile environment created by the supervisors. It
considered whether the two supervisors were acting within the scope
of their employment when they engaged in the harassing conduct. The
court then enquired whether they were significantly aided by the
agency relationship in committing the harassment, and also
considered the possibility of imputing Gordon's knowledge of the
harassment to the City. Finally, the Court of Appeals ruled out
liability for negligence in failing to prevent the harassment.
Faragher relies principally on the latter three theories of
liability.
1
A "master is subject to liability for the torts of his servants
committed while acting in the scope of their employment."
Restatement § 219(1). This doctrine has traditionally defined the
"scope of employment" as including conduct "of the kind [a servant]
is employed to perform," occurring "substantially within the
authorized time and space limits," and "actuated, at least in part,
by a purpose to serve the master," but as excluding an intentional
use of force "unexpectable by the master."
Id., §
228(1).
Courts of Appeals have typically held, or assumed, that conduct
similar to the subject of this complaint falls outside the scope of
employment. See,
e. g., Harrison, 112 F. 3d, at 1444 (sexual
harassment" 'simply is not within the job description of any
supervisor or any other worker in any reputable business' "); 111
F. 3d, at 1535-1536 (case below);
Andrade v.
Mayfair
Management, Inc., 88 F.3d
258, 261 (CA4 1996) ("[I]llegal sexual harassment is ... beyond
the scope of supervisors' employment");
Gary, 59 F. 3d, at
1397 (harassing supervisor acts outside the scope of his
employ-
794
ment in creating hostile environment);
Nichols v.
Frank, 42 F.3d
503, 508 (CA9 1994) ("The proper analysis for employer
liability in hostile environment cases is ...
not whether an
employee was acting within his 'scope of employment' ");
Bouton v.
BMW of North Am., Inc., 29 F.3d
103, 107
(CA3 1994) (sexual harassment is outside scope
of employment); see also
Ellerth v.
Burlington
Industries, Inc., decided with
Jansen v.
Packaging
Corp. of America, 123 F.3d
490, 561 (CA7 1997) (en banc) (Manion, J., concurring and
dissenting) (supervisor's harassment would fall within scope of
employment only in "the rare case indeed"), aff'd,
ante, p.
742; Lindemann & Grossman 812 ("Hostile environment sexual
harassment normally does not trigger respondeat superior liability
because sexual harassment rarely, if ever, is among the official
duties of a supervisor"). But cf.
Martin v.
Cavalier
Hotel Corp., 48 F.3d
1343, 1351-1352
(CA4 1995) (holding employer vicariously
liable in part based on finding that the supervisor's rape of
employee was within the scope of employment);
Kauffman v.
Allied Signal, Inc., 970 F.2d
178, 184 (CA6) (holding that a supervisor's harassment was
within the scope of his employment, but nevertheless requiring the
victim to show that the employer failed to respond adequately when
it learned of the harassment), cert. denied, 506 U. S. 1041 (1992).
In so doing, the courts have emphasized that harassment consisting
of unwelcome remarks and touching is motivated solely by individual
desires and serves no purpose of the employer. For this reason,
courts have likened hostile environment sexual harassment to the
classic "frolic and detour" for which an employer has no vicarious
liability.
These cases ostensibly stand in some tension with others arising
outside Title VII, where the scope of employment has been defined
broadly enough to hold employers vicariously liable for intentional
torts that were in no sense inspired by any purpose to serve the
employer. In
Ira S.
Bushey & Sons, Inc. v.
United States, 398 F.2d
167 (1968), for example,
795
the Second Circuit charged the Government with vicarious
liability for the depredation of a drunken sailor returning to his
ship after a night's carouse, who inexplicably opened valves that
flooded a dry dock, damaging both the dry dock and the ship. Judge
Friendly acknowledged that the sailor's conduct was not remotely
motivated by a purpose to serve his employer, but relied on the
"deeply rooted sentiment that a business enterprise cannot justly
disclaim responsibility for accidents which may fairly be said to
be characteristic of its activities," and imposed vicarious
liability on the ground that the sailor's conduct "was not so
'unforeseeable' as to make it unfair to charge the Government with
responsibility."
Id., at 171. Other examples of an expansive
sense of scope of employment are readily found, see,
e. g.,
Leonbruno v.
Champlain Silk Mills, 229 N. Y. 470, 128 N.
E. 711 (1920) (opinion of Cardozo, J.) (employer was liable under
worker's compensation statute for eye injury sustained when
employee threw an apple at another; the accident arose "in the
course of employment" because such horseplay should be expected);
Carr v.
Wm. C.
Crowell Co., 28 Cal. 2d 652,
171 P. 2d 5 (1946) (employer liable for actions of carpenter who
attacked a coemployee with a hammer). Courts, in fact, have treated
scope of employment generously enough to include sexual assaults.
See,
e. g., Primeaux v.
United States, 102 F.3d
1458, 1462-1463 (CA8 1996) (federal police officer on limited
duty sexually assaulted stranded motorist);
Mary M. v.
Los Angeles, 54 Cal. 3d 202, 216-221, 814 P. 2d 1341,
1349-1352 (1991) (en banc) (police officer raped motorist after
placing her under arrest);
Doe v.
Samaritan Counseling
Ctr., 791 P. 2d 344, 348-349 (Alaska 1990) (therapist had
sexual relations with patient);
Turner v.
State, 494
So. 2d 1291, 1296 (La. App. 1986) (National Guard recruiting
officer committed sexual battery during sham physical
examinations);
Lyon v.
Carey, 533
F.2d 649, 655 (CADC 1976) (furniture deliveryman raped
recipient of furniture);
Samuels v.
Southern Baptist
Hospital, 594 So. 2d 571, 574 (La. App. 1992) (nursing
796
assistant raped patient).2 The rationales for these decisions
have varied, with some courts echoing
Bushey in explaining
that the employee's acts were foreseeable and that the employer
should in fairness bear the resulting costs of doing business, see,
e. g., Mary M., supra, at 218, 814 P. 2d, at 1350, and
others finding that the employee's sexual misconduct arose from or
was in some way related to the employee's essential duties. See,
e. g., Samuels, supra, at 574 (tortious conduct was
"reasonably incidental" to the performance of the nursing
assistant's duties in caring for a "helpless" patient in a "locked
environment").
An assignment to reconcile the run of the Title VII cases with
those just cited would be a taxing one. Here it is enough to
recognize that their disparate results do not necessarily reflect
wildly varying terms of the particular employment contracts
involved, but represent differing judgments about the desirability
of holding an employer liable for his subordinates' wayward
behavior. In the instances in which there is a genuine question
about the employer's responsibility for harmful conduct he did not
in fact authorize, a holding that the conduct falls within the
scope of employment ultimately expresses a conclusion not of fact
but of law. As one eminent authority has observed, the "highly
indefinite phrase" is "devoid of meaning in itself" and is
"obviously no more than a bare formula to cover the unordered and
unauthorized acts of the servant for which it is found to be
expedient to charge the master with liability, as well as to
exclude other acts for which it is not." W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keaton on Law of Torts 502 (5th
ed. 1984); see also Seavey, Speculations as to "Respondeat
Superior," in Studies in Agency 129, 155
2 It bears noting that many courts in non-Title VII cases have
held sexual assaults to fall outside the scope of employment. See
Note, "Scope of Employment" Redefined: Holding Employers
Vicariously Liable for Sexual Assaults Committed by their
Employees, 76 Minn. L. Rev. 1513, 1521-1522, and nn. 33, 34 (1992)
(collecting cases).
797
(1949) ("The liability of a master to a third person for the
torts of a servant has been widely extended by aid of the elastic
phrase 'scope of the employment' which may be used to include all
which the court wishes to put into it"). Older cases, for example,
treated smoking by an employee during working hours as an act
outside the scope of employment, but more recently courts have
generally held smoking on the job to fall within the scope. Prosser
& Keeton,
supra, at 504, and n. 23. It is not that
employers formerly did not authorize smoking but have now begun to
do so, or that employees previously smoked for their own purposes
but now do so to serve the employer. We simply understand smoking
differently now and have revised the old judgments about what ought
to be done about it.
The proper analysis here, then, calls not for a mechanical
application of indefinite and malleable factors set forth in the
Restatement, see,
e. g., §§ 219,228,229, but rather an
enquiry into the reasons that would support a conclusion that
harassing behavior ought to be held within the scope of a
supervisor's employment, and the reasons for the opposite view. The
Restatement itself points to such an approach, as in the commentary
that the "ultimate question" in determining the scope of employment
is "whether or not it is just that the loss resulting from the
servant's acts should be considered as one of the normal risks to
be borne by the business in which the servant is employed."
Id., § 229, Comment
a. See generally
Taber v.
Maine, 67 F.3d
1029, 1037
(CA2 1995) ("As the leading Torts treatise
has put it, 'the integrating principle' of
respondeat
superior is 'that the employer should be liable for those
faults that may be fairly regarded as risks of his business,
whether they are committed in furthering it or not'" (quoting 5 F.
Harper, F. James, & O. Gray, Law of Torts § 26.8, pp. 40-41 (2d
ed. 1986))).
In the case before us, a justification for holding the offensive
behavior within the scope of Terry's and Silverman's employment was
well put in Judge Barkett's dissent: "[A]
798
pervasively hostile work environment of sexual harassment is
never (one would hope) authorized, but the supervisor is clearly
charged with maintaining a productive, safe work environment. The
supervisor directs and controls the conduct of the employees, and
the manner of doing so may inure to the employer's benefit or
detriment, including subjecting the employer to Title VII
liability." 111 F. 3d, at 1542 (opinion dissenting in part and
concurring in part). It is by now well recognized that hostile
environment sexual harassment by supervisors (and, for that matter,
coemployees) is a persistent problem in the workplace. See
Lindemann & Kadue 4-5 (discussing studies showing prevalence of
sexual harassment);
Ellerth, 123 F. 3d, at 511 (Posner, C.
J., concurring and dissenting) ("[E]veryone knows by now that
sexual harassment is a common problem in the American workplace").
An employer can, in a general sense, reasonably anticipate the
possibility of such conduct occurring in its workplace, and one
might justify the assignment of the burden of the untoward behavior
to the employer as one of the costs of doing business, to be
charged to the enterprise rather than the victim. As noted,
supra, at 796-797, developments like this occur from time to
time in the law of agency.
Two things counsel us to draw the contrary conclusion.
First, there is no reason to suppose that Congress wished courts
to ignore the traditional distinction between acts falling within
the scope and acts amounting to what the older law called frolics
or detours from the course of employment. Such a distinction can
readily be applied to the spectrum of possible harassing conduct by
supervisors, as the following examples show. First, a supervisor
might discriminate racially in job assignments in order to placate
the prejudice pervasive in the labor force. Instances of this
variety of the heckler's veto would be consciously intended to
further the employer's interests by preserving peace in the
workplace. N ext, supervisors might reprimand male employees for
workplace failings with banter, but respond to women's
799
shortcomings in harsh or vulgar terms. A third example might be
the supervisor who, as here, expresses his sexual interests in ways
having no apparent object whatever of serving an interest of the
employer. If a line is to be drawn between scope and frolic, it
would lie between the first two examples and the third, and it thus
makes sense in terms of traditional agency law to analyze the scope
issue, in cases like the third example, just as most federal courts
addressing that issue have done, classifying the harassment as
beyond the scope of employment.
The second reason goes to an even broader unanimity of views
among the holdings of District Courts and Courts of Appeals thus
far. Those courts have held not only that the sort of harassment at
issue here was outside the scope of supervisors' authority, but, by
uniformly judging employer liability for co-worker harassment under
a negligence standard, they have also implicitly treated such
harassment as outside the scope of common employees' duties as
well. See
Blankenship v.
Parke Care Centers, Inc.,
123 F.3d
868, 872
873 (CA6 1997), cert. denied, 522 U. S. 1110
(1998);
Fleming v.
Boeing Co., 120
F.3d 242, 246
(CA111997); Perry v.
Ethan Allen,
Inc., 115 F.3d
143, 149
(CA2 1997);
Yamaguchi v.
United
States Dept. of Air Force, 109 F.3d
1475, 1483
(CA9 1997); Varner v.
National Super
Markets, Inc., 94 F.3d
1209, 1213
(CA8 1996), cert. denied, 519 U. S. 1110
(1997);
McKenzie v.
Illinois Dept. of Transp.,
92 F.3d
473, 480
(CA7 1996); Andrade, 88 F. 3d, at 261;
Waymire v.
Harris County, 86 F.3d
424, 428-429
(CA5 1996);
Hirase-Doi v.
U.
S.
West Communications, Inc., 61 F.3d
777, 783 (CAlO 1995);
Andrews v.
Philadelphia,
895 F.2d
1469, 1486
(CA3 1990); cf.
Morrison v.
Carleton Woolen Mills, Inc., 108 F.3d
429, 438
(CA1 1997) (applying "knew or should have
known" standard to claims of environmental harassment by a
supervisor); see also 29 CFR § 1604.11(d) (1997) (employer is
liable for coworker harassment if it "knows or should have known of
the conduct, unless it can show that it took immediate and ap-
800
propriate corrective action"); 3 L. Larson & A. Larson,
Employment Discrimination § 46.07[ 4] [a], p. 46-101 (2d ed. 1998)
(courts "uniformly" apply Equal Employment Opportunity Commission
(EEOC) rule; "[i]t is not a controversial area"). If, indeed, the
cases did not rest, at least implicitly, on the notion that such
harassment falls outside the scope of employment, their liability
issues would have turned simply on the application of the
scope-of-employment rule. Cf.
Hunter v.
Allis-Chalmers,
Inc., 797 F.2d
1417, 1422
(CA7 1986) (noting that employer will not
usually be liable under
respondeat superior for employee's
racial harassment because it "would be the rare case where racial
harassment ... could be thought by the author of the harassment to
help the employer's business").
It is quite unlikely that these cases would escape efforts to
render them obsolete if we were to hold that supervisors who engage
in discriminatory harassment are necessarily acting within the
scope of their employment. The rationale for placing harassment
within the scope of supervisory authority would be the fairness of
requiring the employer to bear the burden of foreseeable social
behavior, and the same rationale would apply when the behavior was
that of coemployees. The employer generally benefits just as
obviously from the work of common employees as from the work of
supervisors; they simply have different jobs to do, all aimed at
the success of the enterprise. As between an innocent employer and
an innocent employee, if we use scope-ofemployment reasoning to
require the employer to bear the cost of an actionably hostile
workplace created by one class of employees (i.
e.,
supervisors), it could appear just as appropriate to do the same
when the environment was created by another class (i.
e.,
co-workers).
The answer to this argument might well be to point out that the
scope of supervisory employment may be treated separately by
recognizing that supervisors have special authority enhancing their
capacity to harass, and that the
801
employer can guard against their misbehavior more easily because
their numbers are by definition fewer than the numbers of regular
employees. But this answer happens to implicate an entirely
separate category of agency law (to be considered in the next
section), which imposes vicarious liability on employers for
tortious acts committed by use of particular authority conferred as
an element of an employee's agency relationship with the employer.
Since the virtue of categorical clarity is obvious, it is better to
reject reliance on misuse of supervisory authority (without more)
as irrelevant to scope-of-employment analysis.
2
The Court of Appeals also rejected vicarious liability on the
part of the City insofar as it might rest on the concluding
principle set forth in § 219(2)(d) of the Restatement, that an
employer "is not subject to liability for the torts of his servants
acting outside the scope of their employment unless ... the servant
purported to act or speak on behalf of the principal and there was
reliance on apparent authority, or he was aided in accomplishing
the tort by the existence of the agency relation." Faragher points
to several ways in which the agency relationship aided Terry and
Silverman in carrying out their harassment. She argues that in
general offending supervisors can abuse their authority to keep
subordinates in their presence while they make offensive
statements, and that they implicitly threaten to misuse their
supervisory powers to deter any resistance or complaint. Thus, she
maintains that power conferred on Terry and Silverman by the City
enabled them to act for so long without provoking defiance or
complaint.
The City, however, contends that § 219(2)(d) has no application
here. It argues that the second qualification of the subsection,
referring to a servant "aided in accomplishing the tort by the
existence of the agency relation," merely "refines" the one
preceding it, which holds the employer vicari-
802
ously liable for its servant's abuse of apparent authority.
Brief for Respondent 30-31, and n. 24. But this narrow reading is
untenable; it would render the second qualification of § 219(2)(d)
almost entirely superfluous (and would seem to ask us to shut our
eyes to the potential effects of supervisory authority, even when
not explicitly invoked). The illustrations accompanying this
subsection make clear that it covers not only cases involving the
abuse of apparent authority, but also cases in which tortious
conduct is made possible or facilitated by the existence of the
actual agency relationship. See Restatement § 219, Comment
e
(noting employer liability where "the servant may be able to cause
harm because of his position as agent, as where a telegraph
operator sends false messages purporting to come from third
persons" and where the manager who operates a store "for an
undisclosed principal is enabled to cheat the customers because of
his position"); id., § 247, Illustration 1 (noting a newspaper's
liability for a libelous editorial published by an editor acting
for his own purposes).
We therefore agree with Faragher that in implementing Title VII
it makes sense to hold an employer vicariously liable for some
tortious conduct of a supervisor made possible by abuse of his
supervisory authority, and that the aided-byagency-relation
principle embodied in § 219(2)(d) of the Restatement provides an
appropriate starting point for determining liability for the kind
of harassment presented here.3 Several courts, indeed, have noted
what Faragher has argued, that there is a sense in which a
harassing supervisor is always assisted in his misconduct by the
supervisory relationship. See,
e. g., Rodgers v.
Western-Southern Life Ins.
3 We say "starting point" because our obligation here is not to
make a pronouncement of agency law in general or to transplant §
219(2)(d) into Title VII. Rather, it is to adapt agency concepts to
the practical objectives of Title VII. As we said in
Meritor
Savings Bank, FSB v.
Vinson, 477 U. S. 57, 72 (1986),
"common-law principles may not be transferable in all their
particulars to Title VII."
803
Co., 12 F.3d
668, 675
(CA7 1993);
Taylor v.
Metzger,
152 N. J. 490, 505, 706 A. 2d 685, 692 (1998) (emphasizing that a
supervisor's conduct may have a greater impact than that of
colleagues at the same level); cf.
Torres, 116 F. 3d, at
631. See also
White v.
Monsanto Co., 585 So. 2d 1205,
1209-1210 (La. 1991) (a supervisor's harassment of a subordinate is
more apt to rise to the level of intentional infliction of
emotional distress than comparable harassment by a coemployee);
Contreras v.
Crown Zellerbach Corp., 88 Wash. 2d 735,
740, 565 P. 2d 1173, 1176 (1977) (same);
Alcorn v.
Anbro
Engineering, Inc., 2 Cal. 3d 493, 498-499, and n. 2, 468 P. 2d
216, 218-219, and n. 2 (1970) (same). The agency relationship
affords contact with an employee subjected to a supervisor's sexual
harassment, and the victim may well be reluctant to accept the
risks of blowing the whistle on a superior. When a person with
supervisory authority discriminates in the terms and conditions of
subordinates' employment, his actions necessarily draw upon his
superior position over the people who report to him, or those under
them, whereas an employee generally cannot check a supervisor's
abusive conduct the same way that she might deal with abuse from a
co-worker. When a fellow employee harasses, the victim can walk
away or tell the offender where to go, but it may be difficult to
offer such responses to a supervisor, whose "power to
supervise-[which may be] to hire and fire, and to set work
schedules and pay rates-does not disappear ... when he chooses to
harass through insults and offensive gestures rather than directly
with threats of firing or promises of promotion." Estrich, Sex at
Work, 43 Stan. L. Rev. 813, 854 (1991). Recognition of employer
liability when discriminatory misuse of supervisory authority
alters the terms and conditions of a victim's employment is
underscored by the fact that the employer has a greater opportunity
to guard against misconduct by supervisors than by common workers;
employers have greater opportunity and incentive to screen them,
train them, and monitor their performance.
804
In sum, there are good reasons for vicarious liability for
misuse of supervisory authority. That rationale must, however,
satisfy one more condition. We are not entitled to recognize this
theory under Title VII unless we can square it with
Meritor's holding that an employer is not "automatically"
liable for harassment by a supervisor who creates the requisite
degree of discrimination,4 and there is obviously some tension
between that holding and the position that a supervisor's
misconduct aided by supervisory authority subjects the employer to
liability vicariously; if the "aid" may be the unspoken suggestion
of retaliation by misuse of supervisory authority, the risk of
automatic liability is high. To counter it, we think there are two
basic alternatives, one being to require proof of some affirmative
invocation of that authority by the harassing supervisor, the other
to recognize an affirmative defense to liability in some
circumstances, even when a supervisor has created the actionable
environment.
There is certainly some authority for requiring active or
affirmative, as distinct from passive or implicit, misuse of
supervisory authority before liability may be imputed. That is the
way some courts have viewed the familiar cases holding the employer
liable for discriminatory employment
4 We are bound to honor
Meritor on this point not merely
because of the high value placed on
stare decisis in
statutory interpretation,
supra, at 792, but for a further
reason as well. With the amendments enacted by the Civil Rights Act
of 1991, Congress both expanded the monetary relief available under
Title VII to include compensatory and punitive damages, see § 102,
105 Stat. 1072, 42 U. S. C. § 1981a, and modified the statutory
grounds of several of our decisions, see § 101
et seq. The
decision of Congress to leave
Meritor intact is conspicuous.
We thus have to assume that in expanding employers' potential
liability under Title VII, Congress relied on our statements in
Meritor about the limits of employer liability. To disregard
those statements now (even if we were convinced of reasons for
doing so) would be not only to disregard
stare decisis in
statutory interpretation, but to substitute our revised judgment
about the proper allocation of the costs of harassment for
Congress's considered decision on the subject.
805
action with tangible consequences, like firing and demotion. See
supra, at 790. And we have already noted some examples of
liability provided by the Restatement itself, which suggest that an
affirmative misuse of power might be required. See
supra, at
802 (telegraph operator sends false messages, a store manager
cheats customers, editor publishes libelous editorial).
But neat examples illustrating the line between the affirmative
and merely implicit uses of power are not easy to come by in
considering management behavior. Supervisors do not make speeches
threatening sanctions whenever they make requests in the legitimate
exercise of managerial authority, and yet every subordinate
employee knows the sanctions exist; this is the reason that courts
have consistently held that acts of supervisors have greater power
to alter the environment than acts of coemployees generally, see
supra, at 802-803. How far from the course of ostensible
supervisory behavior would a company officer have to step before
his orders would not reasonably be seen as actively using
authority? Judgment calls would often be close, the results would
often seem disparate even if not demonstrably contradictory, and
the temptation to litigate would be hard to resist. We think
plaintiffs and defendants alike would be poorly served by an
active-use rule.
The other basic alternative to automatic liability would avoid
this particular temptation to litigate, but allow an employer to
show as an affirmative defense to liability that the employer had
exercised reasonable care to avoid harassment and to eliminate it
when it might occur, and that the complaining employee had failed
to act with like reasonable care to take advantage of the
employer's safeguards and otherwise to prevent harm that could have
been avoided. This composite defense would, we think, implement the
statute sensibly, for reasons that are not hard to fathom.
Although Title VII seeks "to make persons whole for injuries
suffered on account of unlawful employment discrim-
806
ination,"
Albemarle Paper Co. v.
Moody, 422 U. S. 405, 418
(1975), its "primary objective," like that of any statute meant to
influence primary conduct, is not to provide redress but to avoid
harm.
Id., at 417. As long ago as 1980, the EEOC, charged
with the enforcement of Title VII, 42 U. S. C. § 2000e-4, adopted
regulations advising employers to "take all steps necessary to
prevent sexual harassment from occurring, such as ... informing
employees of their right to raise and how to raise the issue of
harassment." 29 CFR § 1604.11(f) (1997), and in 1990 the EEOC
issued a policy statement enjoining employers to establish a
complaint procedure "designed to encourage victims of harassment to
come forward [without requiring] a victim to complain first to the
offending supervisor." EEOC Policy Guidance on Sexual Harassment, 8
FEP Manual 405:6699 (Mar. 19, 1990) (internal quotation marks
omitted). It would therefore implement clear statutory policy and
complement the Government's Title VII enforcement efforts to
recognize the employer's affirmative obligation to prevent
violations and give credit here to employers who make reasonable
efforts to discharge their duty. Indeed, a theory of vicarious
liability for misuse of supervisory power would be at odds with the
statutory policy if it failed to provide employers with some such
incentive.
The requirement to show that the employee has failed in a
coordinate duty to avoid or mitigate harm reflects an equally
obvious policy imported from the general theory of damages, that a
victim has a duty "to use such means as are reasonable under the
circumstances to avoid or minimize the damages" that result from
violations of the statute.
Ford Motor Co. v.
EEOC,
458 U. S. 219,
231, n. 15 (1982) (quoting C. McCormick, Law of Damages 127 (1935)
(internal quotation marks omitted). An employer may, for example,
have provided a proven, effective mechanism for reporting and
resolving complaints of sexual harassment, available to the
employee without undue risk or expense. If the plaintiff
unreasonably
807
failed to avail herself of the employer's preventive or remedial
apparatus, she should not recover damages that could have been
avoided if she had done so. If the victim could have avoided harm,
no liability should be found against the employer who had taken
reasonable care, and if damages could reasonably have been
mitigated no award against a liable employer should reward a
plaintiff for what her own efforts could have avoided.
In order to accommodate the 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, we adopt the
following holding in this case and in
Burlington Industries,
Inc. v.
Ellerth, ante, p. 742, also decided today. 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
808
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. See
Burlington, ante, at 762-763.
Applying these rules here, we believe that the judgment of the
Court of Appeals must be reversed. The District Court found that
the degree of hostility in the work environment rose to the
actionable level and was attributable to Silverman and Terry. It is
undisputed that these supervisors "were granted virtually unchecked
authority" over their subordinates, "directly controll[ing] and
supervis[ing] all aspects of [Faragher's] day-to-day activities."
111 F. 3d, at 1544 (Barkett, J., dissenting in part and concurring
in part). It is also clear that Faragher and her colleagues were
"completely isolated from the City's higher management."
Ibid. The City did not seek review of these findings.
While the City would have an opportunity to raise an affirmative
defense if there were any serious prospect of its presenting one,
it appears from the record that any such avenue is closed. The
District Court found that the City had entirely failed to
disseminate its policy against sexual harassment among the beach
employees and that its officials made no attempt to keep track of
the conduct of supervisors like Terry and Silverman. The record
also makes clear that the City's policy did not include any
assurance that the harassing supervisors could be bypassed in
registering complaints. App. 274. Under such circumstances, we hold
as a matter of law that the City could not be found to have
exercised reasonable care to prevent the supervisors' harassing
conduct. Unlike the employer of a small work force, who might
expect that sufficient care to prevent tortious behavior could be
exercised informally, those responsible for city operations could
not reasonably have thought that precautions against hostile
environments in anyone of many departments in far-
809
flung locations could be effective without communicating some
formal policy against harassment, with a sensible complaint
procedure.
We have drawn this conclusion without overlooking two possible
grounds upon which the City might argue for the opportunity to
litigate further. There is, first, the Court of Appeals's indulgent
gloss on the relevant evidence: "There is some evidence that the
City did not effectively disseminate among Marine Safety employees
its sexual harassment policy." 111 F. 3d, at 1539, n. 11. But, in
contrast to the Court of Appeals's characterization, the District
Court made an explicit finding of a "complete failure on the part
of the City to disseminate said policy among Marine Safety Section
employees." 864 F. Supp., at 1560. The evidence supports the
District Court's finding and there is no contrary claim before
us.
The second possible ground for pursuing a defense was asserted
by the City in its argument addressing the possibility of
negligence liability in this case. It said that it should not be
held liable for failing to promulgate an antiharassment policy,
because there was no apparent duty to do so in the 1985-1990
period. The City purports to rest this argument on the position of
the EEOC during the period mentioned, but it turns out that the
record on this point is quite against the City's position. Although
the EEOC issued regulations dealing with promulgating a statement
of policy and providing a complaint mechanism in 1990, see
supra, at 806, ever since 1980 its regulations have called
for steps to prevent violations, such as informing employees of
their rights and the means to assert them, ibid. The City, after
all, adopted an antiharassment policy in 1986.
The City points to nothing that might justify a conclusion by
the District Court on remand that the City had exercised reasonable
care. Nor is there any reason to remand for consideration of
Faragher's efforts to mitigate her own damages, since the award to
her was solely nominal.
810
3
The Court of Appeals also rejected the possibility that it could
hold the City liable for the reason that it knew of the harassment
vicariously through the knowledge of its supervisors. We have no
occasion to consider whether this was error, however. We are
satisfied that liability on the ground of vicarious knowledge could
not be determined without further factfinding on remand, whereas
the reversal necessary on the theory of supervisory harassment
renders any remand for consideration of imputed knowledge entirely
unjustifiable (as would be any consideration of negligence as an
alternative to a theory of vicarious liability here).
III
The judgment of the Court of Appeals for the Eleventh Circuit is
reversed, and the case is remanded for reinstatement of the
judgment of the District Court.
It is so ordered.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
For the reasons given in my dissenting opinion in
Burlington
Industries, Inc. v.
Ellerth, ante, p. 742, absent an
adverse employment consequence, an employer cannot be held
vicariously liable if a supervisor creates a hostile work
environment. Petitioner suffered no adverse employment consequence;
thus the Court of Appeals was correct to hold that the city of Boca
Raton (City) is not vicariously liable for the conduct of Chief
Terry and Lieutenant Silverman. Because the Court reverses this
judgment, I dissent.
As for petitioner's negligence claim, the District Court made no
finding as to the City's negligence, and the Court of Appeals did
not directly consider the issue. I would therefore remand the case
to the District Court for further proceedings on this question
alone. I disagree with the Court's
811
conclusion that merely because the City did not disseminate its
sexual harassment policy, it should be liable as a matter of law.
See
ante, at 808-809.1 The City should be allowed to show
either that: (1) there was a reasonably available avenue through
which petitioner could have complained to a City official who
supervised both Chief Terry and Lieutenant Silverman, see Brief for
United States and EEOC as
Amici Curiae in
Meritor Savings
Bank, FSB v.
Vinson, O. T. 1985, No. 84-1979, p. 26,2 or
(2) it would not have learned of the harassment even if the policy
had been distributed.3 Petitioner, as the plaintiff, would of
course bear the burden of proving the City's negligence.
1 The harassment alleged in this case occurred intermittently
over a 5year period between 1985 and 1990; the District Court's
factual findings do not indicate when in 1990 it ceased. It was
only in March 1990 that the Equal Employment Opportunity Commission
(EEOC) issued a "policy statement" "enjoining" employers to
establish complaint procedures for sexual harassment. See
ante, at 806. The 1980 Guideline on which the Court
relies-because the EEOC has no substantive rulemaking authority
under Title VII, the Court is inaccurate to refer to it as a
"regulatio[n]," see
ante, at 809-was wholly precatory and as
such cannot establish negligence
per se. See 29 CFR §
1604.11(f) (1997) ("An employer should take all steps necessary to
prevent sexual harassment from occurring ... ").
2 The City's Employment Handbook stated that employees with
"complaints or grievances" could speak to the City's Personnel and
Labor Relations Director about problems at work. See App. 280. The
District Court found that the City's Personnel Director, Richard
Bender, moved quickly to investigate the harassment charges against
Terry and Silverman once they were brought to his attention. See
App. to Pet. for Cert. 80a.
3 Even after petitioner read the City's sexual harassment policy
in 1990, see App. 188, she did not file a charge with City
officials. Instead, she filed suit against the City in 1992.
812
The next page is purposely numbered 901. The numbers between 811
and 901 were intentionally omitted, in order to make it possible to
publish the orders with permanent page numbers, thus making the
official citations available upon publication of the preliminary
prints of the United States Reports.
813
JUNE 1, 1998
Certiorari Granted-Vacated and Remanded
No. 96-1721. CITIZEN POTAWATOMI NATION V. C&L ENTERPRISES,
INC. Ct. Civ. App. Okla. Certiorari granted, judgment vacated, and
case remanded for further consideration in light of
Kiowa Tribe
of Okla. v.
Manufacturing Technologies, Inc., 523 U. S. 751 (1998).
No. 97-216. KIOWA TRIBE OF OKLAHOMA V. AIRCRAFT EQUIPMENT CO. ET
AL. Sup. Ct. Okla. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of
Kiowa Tribe of
Okla. v.
Manufacturing Technologies, Inc., 523 U. S. 751 (1998).
Reported below: 939 P. 2d 1143.
Miscellaneous Orders
No. D-1922. IN RE DISBARMENT OF GOLDFLAM. Disbarment entered.
[For earlier order herein, see 523 U. S. 1017.]
No. D-1924. IN RE DISBARMENT OF MONTAGUE. Disbarment entered.
[For earlier order herein, see 523 U. S. 1017.]
No. D-1925. IN RE DISBARMENT OF HINDIN. Disbarment entered. [For
earlier order herein, see 523 U. S. 1017.]
No. D-1926. IN RE DISBARMENT OF WELLONS. Disbarment entered.
[For earlier order herein, see 523 U. S. 1043.]
No. D-1927. IN RE DISBARMENT OF MAYS. Disbarment entered. [For
earlier order herein, see 523 U. S. 1044.]
No. D-1928. IN RE DISBARMENT OF GOTTLIEB. Disbarment entered.
[For earlier order herein, see 523 U. S. 1044.]
No. D-1934. IN RE DISBARMENT OF SADLER. Further consideration of
response to rule to show cause deferred. [For earlier order herein,
see 523 U. S. 1069.]
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