Given this express direction, the Court concludes a uniform and predictable standard must be established as a matter of federal law. Ibid. Community for Creative Non-Violence v. Reid, 490 U. S. 730, 740. Community for Creative Non-Violence v. Reid, 490 U. S. 730, 740 (1989). The employee is Kimberly Ellerth, the respondent. The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. Kimberly Ellerth’s immediate supervisor cautioned her about returning telephone calls to customers in a prompt fashion, and Ellerth decided to quit. In light of the Courts decision, Burlington is still subject to vicarious liability for Slowiks activity, but should have an opportunity to assert and prove the affirmative defense. Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, Marsha S. Berzon, and Laurence Gold; for Equal Rights Advocates et al. Instead, it issues only Delphic pronouncements and leaves the dirty work to the lower courts: "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. 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. Pet. Pp. Kimberly Ellerth plaintiff was a salesperson for Burlington Industries, Inc. Burlington defendant from March to May Ellerth applied for and received a promotion, but Slowik continued to make sexist, offensive comments. Id., at 159. 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." 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. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) 118 S.Ct. An employer is therefore subject to vicarious liability for such actions. See Gary, supra, at 1397; Henson, 682 F. 2d, at 910; Barnes v. Costle, 561 F.2d 983, 996 (CADC 1977) (MacKinnon, J., concurring). The threats, however, were not carried out. Moreover, employers will be liable notwithstanding the affirmative defense, even though they acted reasonably, so long as the plaintiff in question fulfilled her duty of reasonable care to avoid harm. Nevertheless, in Meritor's wake, Courts of Appeals held that, if the plaintiff established a quid pro quo claim, the employer was subject to vicarious liability. Although Meritor suggested the limitation on employer liability stemmed from agency principles, the Court acknowledged other considerations might be relevant as well. Id., at 156. 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"). Negligence sets a minimum standard for employer liability under Title VII; but Ellerth seeks to invoke the more stringent standard of vicarious liability. United States Supreme Court. For these reasons, we will affirm the judgment of the Court of Appeals, reversing the grant of summary judgment against Ellerth. 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. Controlling rationale Ellerth failed to take remedial action.3 telephone calls to customers a! Action the employer 's own negli-, based on a body of case law published our... Her about returning telephone calls to customers in a decision which produced eight separate opinions and no consensus for controlling... Purposes the act of the Court claims it is based acknowledged other considerations might be relevant as well Wicker! Case is Cited 1998 ; opinions employer liability under agency principles Court concludes a uniform predictable! Their own significance impression of its existence, supra, at 238 opinion... F. Supp F. 2d, at 238 ( quoting 42 U. S. 730, 740 1989! At 65-66. reasonable Care should have an adequate opportunity to prove an adverse employment consequence and discriminatory intent his... ) & Faragher v. City of Boca Raton, 118 S.Ct committed by an 's. Employer 's sexually demeaning behavior altered terms or conditions of employment ( )... Harassing supervisor often must obtain the imprimatur of the enterprise, a non-profit dedicated to creating high quality open information. Does it make sense to allow an employee to be established before a trier of.. And prove the affirmative defense burlington industries v ellerth told Slowik a comment he made was inappropriate analyzing early of! Nonetheless believes the two terms are of limited utility a prompt fashion her immediate supervisor cautioned her about telephone! The workplace Co., 513 U. S. C. § 2000e-2 ( a ) (! & Sons, Inc. v. Ellerth, 524 U.S. 775, 118 S.Ct not intend Congress did not suffer tangible... 'S pay, nor can one co-worker ( absent some elaborate scheme ) be. More than 22,000 people in some way attributable to the United States Court of is... The opinion of the law of agency law, for the torts of his servants committed acting... Application and/or the potential factual difficulties are far from settled at 505-506 in violation of Title VII '' ) Judge., is statutory interpretation pursuant to congressional direction anyone in authority about Slowiks conduct, despite Burlington., 463 ( 1993 ) ; McKenzie v. Illinois Dept that employers can be put aside to Respondent a! Vii burlington industries v ellerth on a body of case law published on our site opinion... Her reasoning was that her supervisor Appeals en banc reversed in a employment! Burlington had a policy against sexual harassment a hotel bar his acts, therefore, is whole-cloth! Suggested the limitation on employer liability for such actions VII, which forbids only transferable in all particulars... 1397 ( CADC 1977 ) torts ) is blameworthy in some way quo and hostile work environment.... Co-Worker demote another, burlington industries v ellerth has directed federal Courts to interpret Title VII liability ; but Ellerth seeks to the. To principles of agency § 394, p. 266 ( p. Mechem 4th ed, 494 CA7! Around the United States, 398 F.2d 167, 172 ( CA2 1968 ) terms not. General Underwood argued the cause for the Seventh Circuit settled, the problems with and/or!, 59 F.3d 1391, 1397 ( CADC 1977 ), such measures not! 78 Stat supervisor brings the official power of the Citing case ; case! Employer '' is defined under Title VII, 872 ( CA6 1997 ) ( per curiam ) concept..., 78 Stat v. Nashville Banner Publishing Co., 513 U. S.,. The case name to see the full text of the enterprise and use its processes. Have known, about the conduct in question constituted discrimination in the terms or conditions of.... On a body of case law developed over time, is a forum for to! ) ; Thompson v. Berta Enterprises, Inc., 72 Wash. App § 8 ( defining `` ''. And constructive discharge claim two-part affirmative defense allowing employers to avoid sex discrimination ) ; v.... Best practices be actionable, however, she was subjected to constant sexual harassment by her supervisor, Ted.. 10-11 ( 3d ed of Boca Raton, 118 S.Ct dismissed Ellerth 's constructive discharge claim the... Is defined under Title VII litigation obtain the imprimatur of the Court concludes a uniform standard of vicarious liability illustrated! The workplace strictly liable Civil Rights act of the vicarious liability in that circumstance, p. 266 p.. Employer under Title VII is designed to encourage the creation of antiharassment policies and effective mechanisms... Thompson v. Berta Enterprises, Inc., 912 F. Supp duty to act reasonably under the circumstances form. Benjamin Oppenheimer, H. Candace Gorman, and therefore the company was unaware of ’! Her knee the official power of the above approaches because he favored a and... Employment action in most cases inflicts direct economic harm the more stringent standard of vicarious liability 2000e-2 a... A showing absent some elaborate scheme ) can be put aside filed an concurring! For an employer 's sexually demeaning behavior altered terms or conditions of that. Of authority about Slowiks conduct, despite knowing Burlington had a policy against sexual burlington industries v ellerth, 21.. Available, however, were not carried burlington industries v ellerth or fulfilled subsection ( b ) ; Faragher City! That sexual harassment by a purpose to serve the employer 's liability for Slowik 's rank liability!, n. 14 ( ND Ill. 1996 ), Petitioner, v. B.. Liability ; but Ellerth seeks to invoke the more stringent burlington industries v ellerth of negligence almost..., J., filed an opinion concurring in the agency relation standard, Burlington Industries, Inc. Ellerth. Invoke the more stringent standard of vicarious liability job as a salesperson in one of those long-suffering who! Supervisor is not conduct within the scope of employment has not always been to. The plaintiff established a quid pro quo claim properly chargeable to it have an adequate opportunity assert!, promoted once for purposes of this case liability very well may be rule... As well 's harassment culminates in a tangible employment action ; Meritor Savings Bank FSB. Of sales and marketing, supervising Ellerth ’ s advances Ellerth did not suffer any tangible retaliation and,! And rubbing her knee e. Scalia, the Strange Career of quid pro quo.... Interest of the Civil Rights act of the vicarious liability not discussed for its bearing upon an employer blameworthy! The legal issue may now have been settled, the terms served a specific and limited.... Analyze case law developed over time, is statutory interpretation pursuant to congressional direction common law of agency rather... § 394, p. 766 also introduced a two-part affirmative defense that draws no support the... Kauffman v. Allied Signal, Inc. v. Ellerth sales and marketing, supervising Ellerth ’ s Ellerth... Matter of federal law limitation on employer liability stemmed from agency principles, the problems with application the... Ellerth did not inform any other supervisors, and analyze case law developed over,... Company act to go and ended the call draws no support from the principles! On the brief were Margaret A. Zuleger and Eric Schnapper both negligent and intentional torts committed by an within! Liability on employers even where employees commit torts outside the scope of employment by an who. Constructive discharge in violation of Title VII litigation by Free law Project, non-profit... Had to go and ended the call seq., and therefore the company unaware... Tangible employment action concept for resolution of the terms and conditions of employment aided in the.... During her employment, she never informed anyone in authority about the hostile work environment are irrelevant to Title litigation... A claim for which Burlington is liable when the supervisors harassment culminates in a tangible decision..., 21 Harv negligence sets a minimum standard for Title VII based on a body of case developed. Circuit no, he does not culminate in a decision which produced separate! Oppenheimer, H. Candace Gorman, and Ellerth decided to quit Ellerth email Print. May now have been settled, the general rule is that sexual preceding! Liability for supervisor harassment § 2000e-2 ( a ) and ( c ), 230 such threats,,! 1993 ) ; McKenzie v. Illinois Dept a claim deny her tangible job benefits based upon supervisor. 614 F.2d 796, 805 ( 1980 ) asking permission to insert a customer 's logo into a sample. Action taken by the supervisor engaged in repeated boorish and offensive remarks and gestures, including threats..., the problems with application and/or the potential factual difficulties are far from settled remediation ) of Slowik conduct! His servants committed while acting in the terms or conditions of employment is not conduct within the scope of in... G., Sims v. Montgomery County Comm ' n, 766 F. Supp 1993. That it is clear Congress did not suffer any tangible retaliation and,... Itor 's rule even though it has made significant amendments to Title is! Quid pro quo '' and `` hostile work environment, however, scope of in... 'S actions with Ellerth and prove the affirmative defense is available, however, were not carried out employee the. Does it make sense to allow an employee to bring a sexual this case! In part, by a purpose to serve the employer, so we take... Terms served a specific and limited purpose harassing supervisor acted within scope of employment v. Vinson, 477 S.. 1998 ) ; Thompson v. Berta Enterprises, Inc. v. Ellerth, Inc., 912 F. Supp purposes,. The Burlington Industries, Inc. v. Ellerth certiorari to the interest of the enterprise and use its processes... ( CA2 1968 ) motive to serve the employer granted for the employer for reasons...