Cengage Advantage Books: Foundations of the Legal Environment of Business 2nd Edition by Marianne Jennings, Albert Napier, Marianne Jennings

Exercise 6

The Boorish Supervisor Meets Vicarious Liability
FACTS
Kimberly Ellerth (respondent) worked as a salesperson in one of Burlington's divisions from March 1993 to May 1994. During her employment, she reported to a mid-level manager, Ted Slowik. Ms. Ellerth worked in a two-person office in Chicago and was one of Burlington's 22,000 employees. Mr. Slowik was based in New York but was responsible for Ms. Ellerth's office. The following incidents of boorish and offensive behavior occurred during Ms. Ellerth's employment.
Summer 1993
While on a business trip, Ms. Ellerth accepted Mr. Slowik's invitation to the hotel lounge. Mr. Slowik made remarks about Ms. Ellerth's breasts, told her to "loosen up," and said, "You know, Kim, I could make your life very hard or very easy at Burlington."
March 1994
Ms. Ellerth was being considered for a promotion, and Mr. Slowik expressed concern during the interview that she was not "loose enough." Mr. Slowik then reached out and rubbed her knee.
March 1994 Mr. Slowik called Ms. Ellerth to give her the promotion and said, "You're gonna be out there with men who work in factories, and they certainly like women with pretty butts/legs."
May 1994 Ms. Ellerth called Mr. Slowik for permission to insert a logo into a fabric sample. Mr. Slowik said, "I don't have time for you right now, Kim-unless you want to tell me what you're wearing." Ms. Ellerth ended the call.
May 1994 Ms. Ellerth called again for permission, and Mr. Slowik said, "Are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier."
In May 1994, the supervisor in the Chicago office cautioned Ms. Ellerth about returning phone calls. Ms. Ellerth quit and faxed a letter giving reasons for her decision unrelated to the alleged sexual harassment. Three weeks later, however, she sent another letter complaining of Mr. Slowik's behavior.
During her employment at Burlington, Ms. Ellerth did not tell anyone about Mr. Slowik's behavior. She chose not to tell her supervisor in the Chicago office because, "It would be his duty as my supervisor to report any incidents of sexual harassment."
Ms. Ellerth filed suit against Burlington for violation of Title VII in that the sexual harassment forced her constructive discharge.
The District Court found Mr. Slowik's behavior created a hostile work environment but found that Burlington neither knew nor should have known about the conduct. The Court of Appeals reversed, with eight separate opinions imposing vicarious liability on Burlington. Burlington appealed.
JUDICIAL OPINION
KENNEDY, Justice
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.
"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 (CA11 1982); and were mentioned in this Court's decision in Meritor Savings Bank, FSB v Vinson, 477 U.S. 57 (1986).…
We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. 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 employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. 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.
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." We rely "on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms."…
The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment.
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.
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.
Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.
For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. 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. 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 anti-harassment 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 any 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.
Affirmed.
DISSENTING OPINION
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.…
Sexual harassment is simply not something that employers can wholly prevent without taking extraordinary measures-constant video and audio surveillance, for example-that would revolutionize the workplace in a manner incompatible with a free society. 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.
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.…
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.
When will an employer be held liable (i.e., vicariously liable) for sexual harassment despite a lack of actual knowledge?