Hostile Work Claim Without Tangible Employment Action

Employers can be held liable for the illegal conduct of supervisors if the conduct creates a hostile work environment, even though the conduct does not result in a tangible employment action. In Burlington Industries, Inc. v. Ellerth, No. 97-569, U.S. Supreme Court (6/26/98), the court ruled that unless an employer can meet a two-part defense, it will be liable for the illegal acts of its supervisors, even if it was not aware of their conduct.

In this case, a supervisor made a series of inappropriate remarks to an employee and the employee finally quit, but did not advise the company of what the superior had done until several weeks after her resignation. The Supreme Court determined that this conduct created a hostile work environment, as the supervisor's behavior altered the terms and conditions of the employee's employment. The court also ruled that even though no tangible employment action occurred, the employer may still be liable unless the employer can demonstrate: 1) the employer exercised reasonable care to prevent and correct the sexually harassing behavior; and, 2) the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm. The court noted that a stated anti-harassment policy with complaint procedure was not required as a matter of law, but implied that the failure to have such a written policy would limit the employer's ability to carry the burden of proof with respect to employer defenses.

Using the Burlington Industries analysis, the court ruled in Faragher v. City of Boca Raton, No. 97-282, U.S. Supreme Court (6/26/98) that the city would be liable for the acts of a supervisor who sexually harassed a life guard by improper touching and making demeaning comments. As the city had failed to distribute its written anti-harassment policy to its lifeguards, the court held that as a matter of law it lost its ability to defend the claim under the Burlington Industries standards.