The Court relies on the general common law of agency, rather than on the law of any particular State. The threats, however, were not carried out or fulfilled. The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. that a master will be liable for a servant's torts if the master was negligent or reckless in permitting them to occur; and as noted, under a negligence standard, Burlington cannot be held liable. 97-569 . A tangible employment action in most cases inflicts direct economic harm. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), is a landmark employment law case of the United States Supreme Court holding that employers are liable if supervisors create a hostile work environment for employees. In applying scope of employment principles to intentional torts, however, it is accepted that "it is less likely that a willful tort will properly be held to be in the course of employment and that the liability of the master for such torts will naturally be more limited." Pp.760-765. With him on the brief were Margaret A. Zuleger and Eric Schnapper. See 29 CFR § 1604.11(c) (1997) (vicarious liability for supervisor harassment turns on "the particular employment relationship and the job functions performed by the individual"). In a somewhat unusual development, the Supreme Court entered the exact holding in Burlington Industries, Inc. v. Ellerth, which was decided on June 26, 1998. 4 See Restatement § 219, Comment e; § 261, Comment a (principal liable for an agent's fraud if "the agent's position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of business confided to him"); § 247, Illustrations (newspaper liable for a defamatory editorial published by editor for his own purposes). Slowik was a mid-level manager who had authority to hire and promote employees, subject to higher approval, but was not considered a policy-maker. Rule. Although such torts generally may be either negligent or intentional, sexual harassment under Title VII presupposes intentional conduct. but employer was not liable because of its quick and effective remediation). The concept of a tangible employment action appears in numerous cases in the Courts of Appeals discussing claims involving race, age, and national origin discrimination, as well as sex discrimination. See ante, at 755-760. Among other things, those opinions focused on whether Ellerth's claim could be categorized as one of quid pro quo harassment, and on whether the standard for an employer's liability on such a claim should be vicarious liability or negligence. The Faragher-Ellerth defense is primarily used to defend against claims of hostile work environment sexual harassment, but has been applied to defend against claims of hostile work environment harassment on the basis of other protected classes as well. As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from where the agent threatens to misuse actual power. Nevertheless, these decisions represent both clarifications and changes in the law of sexual harassment. 912 F. Under subsection (b), an employer is liable when the tort is attributable to the employer's own negli-. U.S. Reports: Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). On remand, the District Court will have the opportunity to decide whether it would be appropriate to allow Ellerth to amend her pleading or supplement her discovery. We rely "on the general common law of agency, rather than on the law of any particular State, to give meaning to these, terms." J.) State-court decisions, applying state employment discrimination law, may be instructive in applying general agency principles, but, it is interesting to note, in many cases their determinations of employer liability under state law rely in large part on federal-court decisions under Title VII. The principal opinion in the case concluded that employment discrimination was not limited to the "isolated and distinguishable events" of "hiring, firing, and promoting." United States Supreme Court. All in all, to day's decision is an ironic result for a case that generated eight separate opinions in the Court of Appeals on a fundamental question, and in which we granted certiorari "to assist in defining the relevant standards of employer liability." Burlington Industries v. Ellerth. Rule Civ. 19, 1990). Id., §§228(1)(c), 230. Citation 524 US 742 (1998) Argued. The consensus disintegrated on the standard for an employer's liability for such a claim. Ellerth was one of those long-suffering women who simply didn't want to make waves. 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. During her employment, she alleges, she was subjected to constant sexual harassment by her supervisor, one Ted Slowik. Congress has not altered Mer-. See Prosser and Keeton on Torts § 70, at 505-506. Restatement § 8, Comment c ("Apparent authority exists only to the extent it is reasonable for the third person dealing with the agent to believe that the agent is authorized"). Nevertheless, as use of the terms grew in the wake of Meritor, they acquired their own significance. 97-569. (b) In deciding whether an employer has vicarious liability in a case such as this, the Court turns to agency law principles, for Title VII defines the term "employer" to include "agents." Does it make sense to allow an employee to bring a sexual The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. During her employment, she alleges, she was subjected to constant sexual harassment by her supervisor, one Ted Slowik. See ante, at 755-760. Supreme Court of the United States See generally E. Scalia, The Strange Career of Quid Pro Quo Sexual Harassment, 21 Harv. There is no contention, furthermore, that a nondelegable duty is involved. If, on the other hand, the employee alleges a racially hostile work environment, the employer is liable only for negligence: that is, only if the employer knew, or in the exercise of reasonable care should have known, about the harassment and failed to take remedial action. Burlington Industries v. Ellerth, Inc. 524 U.S. 742, 118 S.Ct. Ante, at 763. (a) The Court assumes an important premise yet to be established: a trier of fact could find in Slowik’s remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. Case No. Apr 22, 1998. The principal significance of the distinction is to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), is a landmark employment law case of the United States Supreme Court holding that employers are liable if supervisors create a hostile work environment for employees. The aided in the agency relation standard, therefore, requires the existence of something more than the employment relation itself. Since our decision in Meritor, federal courts have explored agency principles, and we find useful instruction in their decisions, noting that "common-law principles may not be transferable in all their particulars to Title VII." She never reported it to her supervisor, or anyone, for that matter, even though she knew that Burlington had a policy that prohibited… Proc. BURLINGTON INDUSTRIES v. ELLERTH, 524 U.S. 742 (1998) FACTS Kimberly Ellerth, a salesperson for defendant, filed a Title VII action alleging that she had been sexually harassed by her supervisor and the harassment forced her to quit. See Barnes v. Costle, 561 F.2d 983, 987 (CADC 1977). 20—21. (f) That rule requires the existence of something more than the employment relation itself because, in a sense, most workplace tortfeasors, whether supervisors or co-workers, are aided in accomplishing their tortious objective by the employment relation: Proximity and regular contact afford a captive pool of potential victims. If, on the other hand, the supervisor carries out his threat and causes the plaintiff a job detriment, the plaintiff may have a disparate treatment claim under Title VII. See, e. g., Sauers v. Salt Lake County, 1 F.3d 1122, 1127 (CAlO 1993) (" 'If the plaintiff can show that she suffered an economic injury from her supervisor's actions, the employer becomes strictly liable without any further showing ... ' "). See Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977) ("[W]e must bear in mind that considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation"). I do not, however, agree that the distinction between hostile work environment and quid pro quo sexual harassment is relevant "when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII." Chief Judge Posner also found Ellerth failed to create a triable issue of fact as to Burlington's negligence. See also § 219, Comment e (Section 219(2) "enumerates the situations in which a master may be liable for torts of servants acting solely for their own purposes and hence not in the scope of employment"). Pp.758-759. Facts: Ms. Kimberly Ellerth sued the Burlington Industries for sexual harassment in the workplace. We distinguished between quid pro quo claims and hostile environment claims, see 477 U. S., at 65, and said both were cognizable under Title VII, though the latter requires harassment that is severe or pervasive. See Ellerth v. Burlington Indus., 912 F.Supp. For example, the question presented here is phrased as whether Ellerth can state a quid pro quo claim, but the issue of real concern to the parties is whether Burlington has vicarious liability, rather than liability limited to its own negligence. Restatement §219(1). Despite her refusals of Slowik’s advances Ellerth did not suffer any tangible retaliation and was, in fact, promoted once. Hence, Ellerth's claim involves only unfulfilled threats, so it is a hostile work environment claim requiring a showing of severe or pervasive conduct. The company had a policy against sexual harassment, and respondent admitted that she was aware of the policy but nonetheless failed to tell anyone with authority over Slowik about his behavior. Moreover, she never informed anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. Limiting employer liability is also consistent with Title VII's purpose to the extent it would encourage the creation and use of antiharassment policies and grievance procedures. Indeed, such measures could not even detect incidents of harassment such as the comments Slowik allegedly made to respondent in a hotel bar. certiorari to the united states court of appeals for the seventh circuit. U.S. 742 (1998). Whatever the exact contours of the aided in the agency relation standard, its requirements will always be met when a supervisor takes a tangible employment action. Advocates. See 477 U. S., at 72 ("common-law principles may not be transferable in all their particulars to Title VII"). The employer is Burlington Industries, the petitioner. Burlington Industries, Inc. v. Ellerth Parties: Kimberly Ellerth (Plaintiff) v. Burlington Industries, Inc. (Defendant). An employer is subject to liability for the torts of its employees acting outside the scope of their employment when, inter alia, the employer itself was negligent or reckless, Restatement §219(2)(b), or the employee purported to act or to speak on behalf of the employer and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation, id., §219(2)(d). Page 464 Burlington Industries, Inc. v. Ellerth Case 524 U.S. 742 (1998) An employee claimed she was constructively discharged because of unwanted, persistent sexual advances by her supervisor. For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. 97-569. Burlington Industries v. Ellerth. From March 1993 until May 1994, Ellerth worked as a salesperson in one of Burlington's divisions in Chicago, Illinois. Section 219(2)(d) makes an employer vicariously liable for sexual harassment by an employee who uses apparent authority (the apparent authority standard), or who was "aided in accomplishing the tort by the existence of the agency relation" (the aided in the agency relation standard). The supervisor often must obtain the imprimatur of the enterprise and use its internal processes. 2 The Courts of Appeals relied on racial harassment cases when analyzing early claims of discrimination based upon a supervisor's sexual harassment. Whether the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action is less obvious. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. no. ity based on an agent's misuse of delegated authority, the Restatement's aided in the agency relation rule, rather than the apparent authority rule, appears to be the appropriate form of analysis. United States v. Diebold, Inc. 369 U.S. 654, 655 (1962) (per curiam). Thus, although a supervisor's sexual harassment is outside the scope of employment because the conduct was for personal motives, an employer can be liable, nonetheless, where its own negligence is a cause of the harassment. Argued April 22, 1998–Decided June 26, 1998. Apparent authority analysis therefore is inappropriate in this context. (c) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. subject to vicarious liability for Slowik's activity, but should have an opportunity to assert and prove the affirmative defense. Quick Exit. In filing this lawsuit, Ellerth alleged Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Case opinion for US 7th Circuit ELLERTH v. BURLINGTON INDUSTRIES INC. Read the Court's full decision on FindLaw. 765-766. Ibid. Moreover, Meritor holds that agency principles constrain the imposition of employer liability for supervisor harassment. Cases based on carried-out threats are referred to often as “quid pro quo” cases, as distinct from bothersome attentions or sexual remarks sufficient to create a “hostile work environment.” Those two terms do not appear in Title VII, which forbids only “discriminat[ion] against any individual with respect to his … terms [or] conditions … of employment, because of … sex.” §2000e–2(a)(1). From March 1993 until May 1994, Ellerth worked as a salesperson in one of Burlington's divisions in Chicago, Illinois. Pp. See Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75,81 (1998); Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993). Respondent Kimberly Ellerth quit her job after 15 months as a salesperson in one of petitioner Burlington Industries’ many divisions, allegedly because she had been subjected to constant sexual harassment by one of her supervisors, Ted Slowik. Rule Civ. A tangible employment decision requires an official act of the enterprise, a company act. On one occasion, she told Slowik a comment he made was inappropriate. Ibid. BURLINGTON INDUSTRIES, INC. v. ELLERTH. None of the parties contend Slowik's rank imputes liability under this principle. Subsections (b) and (d) are possible grounds for imposing employer liability on account of a supervisor's acts and must be considered. Scope of employment does not define the only basis for employer liability under agency principles. 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. A co-worker can break a co-worker's arm as easily as a supervisor, and anyone who has regular contact with an employee can inflict psychological injuries by his or her offensive conduct. James J. Casey argued the cause for petitioner. During her tenure at Burlington, Ellerth did not inform anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. Restatement §§ 228(1)(c), 230. 6—9. For example, the question presented here is phrased as whether Ellerth can state a quid pro quo claim, but the issue of real concern to the parties is whether Burlington has vicarious liability, rather than liability limited to its own negligence. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, and BREYER, JJ., joined. The Court then interprets the term "agency principles" to mean the Restatement (Second) of Agency (1957). Section 219(2)(d) of the Restatement provides no basis whatsoever for imposing vicarious liability for a supervisor's creation of a hostile work environment. See Meritor, supra, at 72. The judges seemed to agree Ellerth could recover if Slowik's unfulfilled threats to deny her tangible job benefits was sufficient to impose vicarious liability on Burlington. Ibid. Ellerth did not inform any other supervisors, and therefore the company was unaware of Slowik's actions with Ellerth. I therefore respectfully dissent. Vivian & Patricia Question 3 Question 2 Andrea Do you understand why the Court would allow that affirmative defense in cases where there is no loss of tangible job benefit, but not in cases where there is such a loss? To the extent they illustrate the distinction between cases involving a carried-out threat and offensive conduct in general, they are relevant when there is a threshold question whether a plaintiff can prove discrimination. The question presented on certiorari is whether Ellerth can state a claim of quid pro quo harassment, but the issue of real concern to the parties is whether Burlington has vicarious liability for Slowik's alleged misconduct, rather than liability limited to its own negligence. Jun 26, 1998. Burlington Industries, Inc. v. Ellerth. For example, Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Policy 307 (1998). Id., at 78. Id., at 499. Id., at 517. § 219(2)(b). Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. In October 1994, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), Ellerth filed suit in the United States District Court for the Northern District of Illinois, alleging Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII. We decide whether, under Title VII of the Civil Rights Act of 1964, 78 Stat. This Court nonetheless believes the two terms are of limited utility. If the supervisor’s harassment culminates in a tangible employment action the employer is strictly liable. They had different reasons for the conclusion. BURLINGTON INDUSTRIES, INC. v. ELLERTH. 477 U. S., at 72. Given this express direction, the Court concludes a uniform and predictable standard must be established as a matter of federal law. Ante, at 764. That is, liability should attach only if the employer either knew, or in the exercise of. as amici curiae urging affirmance. 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. Kimberly Ellerth's lawsuit against Burlington Industries, which claimed that a higher level supervisor sexually harassed her, foundered on the rules for holding a company liable for its supervisory employees' conduct in this area. 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. Given this express direction, the Court concludes a uniform and predictable standard must be established as a matter of federal law. But one co-worker (absent some elaborate scheme) cannot dock another's pay, nor can one co-worker demote another. 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. In practice, therefore, employer liability very well may be the rule. 97–569. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. 2257, 141 L.Ed.2d 633 (1998) & Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 97-569. argued april 22, 1998-decided june 26,1998. Case No. See Gary v. Long, 59 F.3d 1391, 1397 (CADC 1995). So, for our purposes here, subsections (a) and (c) can be put aside. As a result, employer liability under Title VII is judged by different standards depending upon whether a sexually or racially hostile work environment is alleged. An intentional tort is within the scope of employment when actuated, at least in part, by a purpose to serve the employer. 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. Section 219(1) of the Restatement sets out a central principle of agency law: "A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.". This is not federal common law in "the strictest sense, i. e., a rule of decision that amounts, not simply to an interpretation of a federal statute ... , but, rather, to the judicial 'creation' of a special federal rule of decision." She needed her job. See 29 CFR § 1604.11(f) (1997); EEOC Policy Guidance on Sexual Harassment, 8 BNA FEP Manual 405:6699 (Mar. sex." Limiting employer liability is also consistent with Title VII’s purpose to the extent it would encourage the creation and use of anti-harassment policies and grievance procedures. Less obvious was whether an employer's sexually demeaning behavior altered terms or conditions of employment in violation of Title VII. certiorari to the united states court of appeals for the seventh circuit. 3 I agree with the Court that the doctrine of quid pro quo sexual harassment is irrelevant to the issue of an employer's vicarious liability. Burlington Industries, Inc. v. Ellerth 524 U.S. 742 (1998) I. E Majo 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. 42 U. S. C. § 2000e-2(a)(1). Compare Restatement § 6 (defining "power") with § 8 (defining "apparent authority"). 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. (e) As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from threatening to misuse actual power. This distinction applies with equal force in cases of sexual harassment.2 When a supervisor inflicts an adverse employment consequence upon an employee who has rebuffed his advances, the supervisor exercises the specific authority granted to him by his company. Id., at 72. Id., §§ 228(1)(c), 230. Id., at 505. A disparate treatment claim required a plaintiff to prove an adverse employment consequence and discriminatory intent by his employer. Supp., at 1109. Argued April 22, 1998. NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. On the one hand, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation. Thus, the general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. An employer is therefore subject to vicarious liability for such actions. See ante, at 763; Meritor Savings Bank, FSB v. Vinson, 477 U. S., at 72. Fed. Pp. (a) The Court assumes an important premise yet to be established: A trier offact could find in Slowik's remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. Contrary to the Court's suggestions, the principle embodied in § 219(2)(d) has nothing to do with a servant's "power and authority," nor with whether his actions appear "threatening." Federal courts have nonetheless found similar limitations on employer liability when applying the agency laws of the States under the Federal Tort Claims Act, which makes the Federal Government liable for torts committed by employees within the scope of employment. In fact, she chose not to inform her immediate supervisor (not Slowik) because" 'it would be his duty as my supervisor to report any incidents of sexual harassment.'" See, e. g., Blankenship v. Parke Care Centers, Inc., 123 F.3d 868, 872 (CA6 1997), cert. An employer is negligent, and therefore subject to liability under § 219(2)(b), if it knew or should have known about sexual harassment and failed to stop it. Were employer liability to depend in part on an employer's effort to create such procedures, it would effect Congress' intention to promote conciliation rather than litigation in the Title VII context, see EEOC v. Shell Oil Co., 466 U. S. 54, 77 (1984), and the EEOC's policy of encouraging the development of grievance procedures. The terms appeared first in the academic literature, see C. MacKinnon, Sexual Harassment of Working Women (1979); found their way into decisions of the Courts of Appeals, see, e. g., Henson v. Dundee, 682 F.2d 897, 909 (CAll 1982); and were mentioned in this Court's decision in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986). Pp. Pp. Id., at 552. The court found Slowik's behavior, as described by Ellerth, severe and pervasive enough to create a hostile work environment, but found Burlington neither knew nor should have known about the conduct. To the extent they illustrate the distinction between cases involving a carried-out threat and offensive conduct in general, they are relevant when there is a threshold question whether a plaintiff can prove discrimination. See, e. g., Dennis v. Cty. (BNA) 1, 170 A.L.R. As such, it should be treated no differently (and certainly no better) than the other forms of harassment that are illegal under Title VII. Contributor Names Kennedy, Anthony M. (Judge) Supreme Court of the United States (Author) Created / … (BNA) 1, 170 A.L.R. Ibid. Respondent Kimberly Ellerth quit her job after 15 months as a salesperson in one of petitioner Burlington Industries’ many divisions, allegedly because she had been subjected to constant sexual harassment by one of her supervisors, Ted Slowik. I also subscribe to the Court's statement of the rule governing employer liability, ibid., which is substantively identical to the rule the Court adopts in Faragher v. Boca Raton, post, p.775. Question: At Employers Are To Sexual Harassment, As Illustrated By Burlington Industries, Inc. V. Ellerth (Case CASE Burlington Industries, Inc. V. Ellerth 17.3 The Boorish Supervisor Meets Vicarious Liability FACTS The Hotel Lounge. (g) Given the Court's explanation that the labels quid pro quo and hostile work environment are not controlling for employer-liability purposes, Ellerth should have an adequate opportunity on remand to prove she has a claim which would result in vicarious liability. 2275, 141 L.Ed.2d 662 (1998). Opinion for Ellerth v. Burlington Industries, Inc., 912 F. Supp. Quick Reference. Consensus disintegrated on the law of sexual harassment by her supervisor, one Ted Slowik to allow an employee be... 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