Under previous law, sexual harassment complaints were analyzed as quid pro quo and/or hostile work environment cases. The two most recent decisions hold that these legal theories remain valid. However, to decide whether an employer is liable for a supervisor's proven act of unlawful sexual harassment, courts will no longer focus on the technical distinction between hostile environment and quid pro quo allegations. Rather a distinction now will be drawn between cases where:
- Any tangible job action is taken against the plaintiff-victim by the offending supervisor, and
- No tangible job action is taken (i.e., the plaintiff-victim either remains employed or quits.)
Where a harassing supervisor takes a tangible job action, the employer now faces strict liability. Where no tangible job action is taken, the employer remains vicariously liable for the supervisor's sexual harassment, but may assert an affirmative defense relating to its efforts to prevent the harassment from occurring.
Importance of Harassment Policy
Faragher arose out of a female lifeguard's experience in Boca Raton. She had three immediate supervisors. Over the course of her tenure, two of them repeatedly groped her and other female lifeguards on their staff, and made dozens of comments, gestures, and jokes of an explicitly sexual nature. Although the city issued a sexual harassment policy, it was never distributed to the division where Faragher worked. Consequently, her supervisors were unaware of it.
Although Faragher complained to one of her supervisors about the inappropriate behavior, she never made a formal complaint to the city. But two months before she resigned, another female lifeguard did complain to the city's personnel director about the supervisors' behavior. The city investigated and found that two of the men behaved improperly. Punishment followed. Faragher resigned two months later and filed a hostile work environment claim against the city.
The district court ruled for Faragher, reasoning that the sexual harassment was sufficiently pervasive to conclude that the city had constructive knowledge of the harassment. The Eleventh Circuit reversed, reasoning that the supervisors were not acting within the scope of their employment and that their "agency relationship" with the city did not assist them in harassing the plaintiff because they never threatened to fire or demote her.
The Supreme Court held that an employer is vicariously liable for actionable harassment by a supervisor, subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff-victim.
The court wrestled with the issue of where is should draw the line on an employer's vicarious responsibility. The Court held that, where an employee can establish that a supervisor created a hostile work environment through severe or pervasive acts of sexual harassment, then the employer will be held vicariously liable for that harassment, subject to an affirmative defense.
So long as the supervisor takes no tangible job action against the employee, and employer can avoid liability by proving by a preponderance of the evidence that (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.
While a harassment policy is not always required, the presence of a policy will be an issue in demonstrating reasonable care. Moreover, an employer will generally be able to meet its burden of proof where a victim failed to take advantage of an employer's reasonable complaint procedure.
Action Attributable to Employer
The Ellerth case stemmed from a supervisor's remarks that plainly threatened his subordinate's employment in connection with the supervisor's accompanying sexual advances, yet he never carried out the threats. The offending supervisor was a mid-level manager whose hiring and firing authority was subject to the approval of a higher-ranking supervisor. Over the course of plaintiff's employment, the supervisor subjected her to a series of remarks in which he linked plaintiffs prospects for success at Burlington to her willingness to engage in sexual activities.
Although Burlington had a sexual harassment policy that contained internal complaint procedures, Ellerth never complained. Instead, she resigned, initially providing reasons unrelated to the harassment. Three weeks later, Ellerth sent a letter to Burlington indicating that she quit because of the inappropriate behavior. She then sued Burlington, alleging that she was sexually harassed and forced to resign in violation of Title VII. The district court awarded summary judgment to Burlington, finding it had no knowledge or reason to know of the harassment. The Seventh Circuit reversed on the question of Burlington's vicarious liability in a fragmented decision.
The Supreme Court first held that a supervisor's unfulfilled threats do not give rise to a quid pro quo claim, but rather are to be analyzed under the hostile work environment theory.
Along with its simultaneous issuance of Faragher, the Court in Ellerth held that, whenever a supervisor takes some tangible job action against a victim, that action could be attributed to the employer for purposes of determining vicarious liability. The court reasoned that the taking of a tangible job action couldn't occur unless the supervisor uses that power as an agent of the employer, such that the law will deem the employment action taken by the supervisor to be the action of the employer. 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.