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." 12—14. In contrast, Judge Kanne said Ellerth had stated a quid pro quo claim, but negligence was the appropriate standard of liability when the quid pro quo involved threats only. Pp. When discrimination is thus proved, the factors discussed below, not the categories quid pro quo and hostile work environment, control on the issue of vicarious liability. Case No. See, e. g., Dennis v. Cty. The consensus disintegrated on the standard for an employer's liability for such a claim. Burlington Industries v. Ellerth. 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. 2257 (1998); Faragher v. City of Boca Raton, 118 S.Ct. (d) However, scope of employment is not the only basis for employer liability under agency principles. 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). The Seventh Circuit en banc reversed in a decision that produced eight separate opinions and no consensus for a controlling rationale. 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. 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"). (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. Syllabus. Popular misconceptions notwithstanding, sexual harassment is not a freestanding federal tort, but a form of employment discrimination. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, and BREYER, JJ., joined. At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate. A short time later, Ellerth's immediate supervisor cautioned her about returning telephone calls to customers in a prompt fashion. appears to reason that a supervisor is "aided ... by ... the agency relation" in creating a hostile work environment because the supervisor's "power and authority invests his or her harassing conduct with a particular threatening character." This Court nonetheless believes the two terms are of limited utility. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an 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. 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. As such, it should be treated no differently (and certainly no better) than the other forms of harassment that are illegal under Title VII. Because supervisory harassment cases involve misuse of actual power, not the false impression of its existence, apparent authority analysis is inappropriate. Although few courts have elaborated how agency principles support this rule, we think it reflects a correct application of the aided in the agency relation standard. Id., at 1121. BURLINGTON INDUSTRIES, INC. v. ELLERTH 524 US 742 (1998) (Case Syllabus edited by the Author) 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. Pp. The Restatement (Second) of Agency (hereinafter Restatement) is a useful beginning point, although common-law principles may not be wholly transferable to Title VII. 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 … Contributor Names Kennedy, Anthony M. (Judge) Supreme Court of the United States (Author) Created / … No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action. tangible job benefits. 97-569. Id., at 72. For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. When a party seeks to impose vicarious liabil-. In practice, therefore, employer liability very well may be the rule. 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." 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. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 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. 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. The District Court also dismissed Ellerth's constructive discharge claim. Id., at 159-160. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. It is a premise assumed as well, in explicit or implicit terms, in the various opinions by the judges of the Court of Appeals. Negligence sets a minimum standard for employer liability under Title VII; but Ellerth seeks to invoke the more stringent standard of vicarious liability. Compare Restatement § 6 (defining "power") with § 8 (defining "apparent authority"). 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. As other federal decisions have done in discussing vicarious liability for supervisor harassment, e. g., Henson v. Dundee, 682 F.2d 897, 909 (CAll 1982), we begin with § 219(2)(d). 912 F. but employer was not liable because of its quick and effective remediation). Deputy Solicitor General Underwood argued the cause for the United States et al. E. g., Sims v. Montgomery County Comm'n, 766 F. Supp. Decided by Rehnquist 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." 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. The aided in the agency relation standard, however, is a developing feature of agency law, and we hesitate to render a definitive explanation of our understanding of the standard in an area where other important considerations must affect our judgment. 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. Indeed, the Court admits as much in demonstrating why sexual harassment is not committed within the scope of a supervisor's employment and is not part of his apparent authority. Burlington Industries, Inc. v. Ellerth . Restatement §219(1). This Court nonetheless believes the two terms are of limited utility. In 1998, when the U.S. Supreme Court decided Burlington Industries v. Ellerth and Faragher v. City of Boca Raton , it set forth an affirmative defense that may be used by an employer to avoid liability for sexual harassment predicated upon a hostile work environment when no adverse employment action has been suffered by the employee. burlington industries, inc. v. ellerth. Get Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), United States Supreme Court, case facts, key issues, and holdings and reasonings online today. The Court. 477 U. S., at 72. 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. 155. by Samuel A. Marcosson, Beth H. Parker, and Rose Fua; and for the Rutherford Institute by John W Whitehead and Steven H. Aden. Id., at 517. Ibid. An employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship. 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. The Court of Appeals en banc reversed in a decision which produced eight separate opinions and no consensus for a controlling rationale. That is, liability should attach only if the employer either knew, or in the exercise of. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined. 755-757. (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. The employee is Kimberly Ellerth, the respondent. Every Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action. See Bundy v. Jackson, 641 F.2d 934,944 (CADC 1981); see also Henson v. Dundee, 682 F.2d 897, 901 (CAll 1982). A hostile environment claim required the plaintiff to show that his work environment was so pervaded by racial harassment as to alter the terms and conditions of his employment. Decided. Media. It is this tension which, we think, has caused so much confusion among the Courts of Appeals which have sought to apply the aided in the agency relation standard to Title VII cases. 587, 622, 626 A. 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. We turn to the aided in the agency relation standard. See Meritor, supra, at 72. Kimberly Ellerth’s immediate supervisor cautioned her about returning telephone calls to customers in a prompt fashion, and Ellerth decided to quit. liability issue considered here. BURLINGTON INDUSTRIES, INC. v. ELLERTH. GINSBURG, J., filed an opinion concurring in the judgment, post, p. 766. seq., an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions. Argued April 22, 1998—Decided June 26, 1998. 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. JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting. 42 U. S. C. § 2000e(b); see Meritor, supra, at 72. Id., at 1118. Civ. During her employment, she alleges, she was subjected to constant sexual harassment by her supervisor, one Ted Slowik. See id., at 1123. Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. Syllabus The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. (sexual harassment amounting to assault and battery "clearly outside the scope of employment"); see also 2 L. Jayson & R. Longstreth, Handling Federal Tort Claims § 9.07[4], p. 9-211 (1998). of Fairfax, 55 F.3d 151, 153 (CA4 1995); Davis v. Monsanto Chemical Co.. 858 F.2d 345, 349 (CA6 1988), cert. 1101, 1119, n. 14 (ND Ill. 1996). § 2000e et seq., and constructive discharge in violation of Title VII. A disparate treatment claim required a plaintiff to prove an adverse employment consequence and discriminatory intent by his employer. 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). (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. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an 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." Terms quid pro quo claim, the employer is therefore subject to vicarious liability when a discriminatory results! 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