Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)
742
118 S.Ct. 2257
141 L.Ed.2d 633
Syllabus *
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. 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. Against a background of repeated
boorish and offensive remarks and gestures allegedly made by Slowik,
Ellerth places particular emphasis on three incidents where Slowik's
comments could be construed as threats to deny her tangible job benefits.
Ellerth refused all of Slowik's advances, yet suffered no tangible
retaliation and was, in fact, promoted once. Moreover, she never informed
anyone in authority about Slowik's conduct, despite knowing Burlington
had a policy against sexual harassment. 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. 2000e et seq. The District Court granted Burlington
summary judgment. The Seventh Circuit en banc reversed in a decision
that produced eight separate opinions and no consensus for a controlling
rationale. 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.
Held: Under Title VII, an employee who refuses the unwelcome and
We decide whether, under Title VII of the Civil Rights Act of 1964, 78 Stat.
253, as amended, 42 U.S.C. 2000e et 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.
* Summary judgment was granted for the employer, so we must take the facts
* Summary judgment was granted for the employer, so we must take the facts
alleged by the employee to be true. United States v. Diebold, Inc. 369 U.S. 654,
655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). The employer is
Burlington Industries, the petitioner. The employee is Kimberly Ellerth, the
respondent. From March 1993 until May 1994, Ellerth worked as a salesperson
in one of Burlington's divisions in Chicago, Illinois. During her employment,
she alleges, she was subjected to constant sexual harassment by her supervisor,
one Ted Slowik.
In March 1994, when Ellerth was being considered for a promotion, Slowik
expressed reservations during the promotion interview because she was not
"loose enough.'' Id., at 159. The comment was followed by his reaching over
and rubbing her knee. Ibid. Ellerth did receive the promotion; but when Slowik
called to announce it, he told Ellerth, "you're gonna be out there with men who
work in factories, and they certainly like women with pretty butts/legs.'' Id., at
159-160.
told Slowik she had to go and ended the call. Ibid. A day or two later, Ellerth
called Slowik to ask permission again. This time he denied her request, but
added something along the lines of, "are you wearing shorter skirts yet, Kim,
because it would make your job a whole heck of a lot easier.'' Id., at 79.
7
A short time later, Ellerth's immediate supervisor cautioned her about returning
telephone calls to customers in a prompt fashion. 912 F.Supp., at 1109. In
response, Ellerth quit. She faxed a letter giving reasons unrelated to the alleged
sexual harassment we have described. Ibid. About three weeks later, however,
she sent a letter explaining she quit because of Slowik's behavior. Ibid.
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. Ibid. 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.''' Ibid. On one occasion, she told Slowik a comment he
made was inappropriate. Ibid.
10
The consensus disintegrated on the standard for an employer's liability for such
a claim. Six judges, Judges Flaum, Cummings, Bauer, Evans, Rovner, and
Diane P. Wood, agreed the proper standard was vicarious liability, and so
Ellerth could recover even though Burlington was not negligent. Ibid. They had
different reasons for the conclusion. According to Judges Flaum, Cummings,
Bauer, and Evans, whether a claim involves a quid pro quo determines whether
vicarious liability applies; and they in turn defined quid pro quo to include a
supervisor's threat to inflict a tangible job injury whether or not it was
completed. Id., at 499. Judges Wood and Rovner interpreted agency principles
to impose vicarious liability on employers for most claims of supervisor sexual
harassment, even absent a quid pro quo. Id., at 565.
12
Although Judge Easterbrook did not think Ellerth had stated a quid pro quo
claim, he would have followed the law of the controlling State to determine the
employer's liability, and by this standard, the employer would be liable here.
Id., at 552. 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. Id., at 505.
13
14
15
The disagreement revealed in the careful opinions of the judges of the Court of
Appeals reflects the fact that Congress has left it to the courts to determine
controlling agency law principles in a new and difficult area of federal law. We
granted certiorari to assist in defining the relevant standards of employer
liability. 522 U.S. ----, 118 S.Ct. 876, 139 L.Ed.2d 865 (1998).
II
16
17
"an employer-
18
19
"Quid pro quo'' and "hostile work environment'' do not appear in the statutory
text. 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
(C.A.11 1982); and were mentioned in this Court's decision in Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). See
generally E. Scalia, The Strange Career of Quid Pro Quo Sexual Harassment,
21 Harv. J.L. & Pub. Policy 307 (1998).
20
Nevertheless, as use of the terms grew in the wake of Meritor, they acquired
their own significance. The standard of employer responsibility turned on
which type of harassment occurred. If the plaintiff established a quid pro quo
claim, the Courts of Appeals held, the employer was subject to vicarious
liability. See Davis v. Sioux City, 115 F.3d 1365, 1367 (C.A.8 1997); Nichols v.
Frank, 42 F.3d 503, 513-514 (C.A.9 1994); Bouton v. BMW of North America,
Inc., 29 F.3d 103, 106-107 (C.A.3 1994); Sauers v. Salt Lake County, 1 F.3d
1122, 1127 (C.A.10 1993); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 185186 (C.A.6), cert. denied, 506 U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701
(1992); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (C.A.11
1989). The rule encouraged Title VII plaintiffs to state their claims as quid pro
quo claims, which in turn put expansive pressure on the definition. The
equivalence of the quid pro quo label and vicarious liability is illustrated by this
case. 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 question presented for
certiorari asks:
22
"Whether a claim of quid pro quo sexual harassment may be stated under Title
VII . . . . where the plaintiff employee has neither submitted to the sexual
advances of the alleged harasser nor suffered any tangible effects on the
compensation, terms, conditions or privileges of employment as a consequence
of a refusal to submit to those advances?'' Pet. for Cert. i.
23
We do not suggest the terms quid pro quo and hostile work environment are
irrelevant to Title VII litigation. 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. 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 employment
decision itself constitutes a change in the terms and conditions of employment
that is actionable under Title VII. For any sexual harassment preceding the
employment decision to be actionable, however, the conduct must be severe or
pervasive. 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. See Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. ----, ----, 118 S.Ct. 998, 1002-1003, 140 L.Ed.2d 201, (1998); Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295
(1993). For purposes of this case, we accept the District Court's finding that the
alleged conduct was severe or pervasive. See supra, at __-__. The case before
us involves numerous alleged threats, and we express no opinion as to whether
a single unfulfilled threat is sufficient to constitute discrimination in the terms
or conditions of employment.
24
III
25
S.Ct. 666, 670, 136 L.Ed.2d 656 (1997). 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. E.g., Arizona v. Schallock, 189 Ariz. 250, 259, 941 P.2d 1275,
1284 (1997); Lehmann v. Toys "R' Us, Inc., 132 N.J. 587, 622, 626 A.2d 445,
463 (1993); Thompson v. Berta Enterprises, Inc., 72 Wash.App. 531, 537-539,
864 P.2d 983, 986-988 (1994).
26
27
* Section 219(1) of the Restatement sets out a central principle of agency law:
28
"A master is subject to liability for the torts of his servants committed while
acting in the scope of their employment.''
29
An employer may be liable for both negligent and intentional torts committed
by an employee within the scope of his or her employment. Sexual harassment
under Title VII presupposes intentional conduct. While early decisions
absolved employers of liability for the intentional torts of their employees, the
law now imposes liability where the employee's "purpose, however misguided,
is wholly or in part to further the master's business.'' W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on Law of Torts 70, p. 505 (5th
ed.1984) (hereinafter Prosser and Keeton on Torts). 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.''
F. Mechem, Outlines of the Law of Agency 394, p. 266 (P. Mechem 4th ed.,
1952). The Restatement defines conduct, including an intentional tort, to be
within the scope of employment when "actuated, at least in part, by a purpose
to serve the [employer],'' even if it is forbidden by the employer. Restatement
228(1)(c), 230. For example, when a salesperson lies to a customer to make a
sale, the tortious conduct is within the scope of employment because it benefits
the employer by increasing sales, even though it may violate the employer's
policies. See Prosser and Keeton on Torts 70, at 505-506.
30
31
The concept of scope of employment has not always been construed to require a
motive to serve the employer. E.g., Ira S. Bushey & Sons, Inc. v. United States,
398 F.2d 167, 172 (C.A.2 1968). 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. 28 U.S.C.
1346(b); see, e.g., Jamison v. Wiley, 14 F.3d 222, 237 (C.A.4 1994)
(supervisor's unfair criticism of subordinate's work in retaliation for rejecting
his sexual advances not within scope of employment); Wood v. United States,
995 F.2d 1122, 1123 (C.A.1 1993) (BREYER, C.J.) (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).
32
The general rule is that sexual harassment by a supervisor is not conduct within
the scope of employment.
B
33
Scope of employment does not define the only basis for employer liability
under agency principles. In limited circumstances, agency principles impose
liability on employers even where employees commit torts outside the scope of
employment. The principles are set forth in the much-cited 219(2) of the
Restatement:
34
" (2) A master is not subject to liability for the torts of his servants acting
outside the scope of their employment, unless:
35
36
37
38
" (d) the servant purported to act or to speak on behalf of the principal and there
was reliance upon apparent authority, or he was aided in accomplishing the tort
by the existence of the agency relation.''
Subsection (a) addresses direct liability, where the employer acts with tortious
intent, and indirect liability, where the agent's high rank in the company makes
him or her the employer's alter ego. None of the parties contend Slowik's rank
imputes liability under this principle. There is no contention, furthermore, that a
nondelegable duty is involved. See 219(2)(c). So, for our purposes here,
subsections (a) and (c) can be put aside.
41
Subsections (b) and (d) are possible grounds for imposing employer liability on
account of a supervisor's acts and must be considered. Under subsection (b), an
employer is liable when the tort is attributable to the employer's own
negligence. 219(2)(b). 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. An employer is negligent with respect to sexual
harassment if it knew or should have known about the conduct and failed to
stop it. Negligence sets a minimum standard for employer liability under Title
VII; but Ellerth seeks to invoke the more stringent standard of vicarious
liability.
42
C
43
D
44
We turn to the aided in the agency relation standard. In a sense, most workplace
tortfeasors are aided in accomplishing their tortious objective by the existence
of the agency relation: Proximity and regular contact may afford a captive pool
of potential victims. See Gary v. Long, 59 F.3d 1391, 1397 (C.A.D.C.1995).
Were this to satisfy the aided in the agency relation standard, an employer
would be subject to vicarious liability not only for all supervisor harassment,
but also for all co-worker harassment, a result enforced by neither the EEOC
nor any court of appeals to have considered the issue. See, e.g., Blankenship v.
Parke Care Centers, Inc., 123 F.3d 868, 872 (C.A.6 1997), cert. denied, 522
U.S. ----, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998) (sex discrimination);
McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 480 (C.A.7 1996) (sex
discrimination); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1273 (C.A.7
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. 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, e.g., Sauers v. Salt Lake County, 1 F.3d 1122, 1127
(C.A.10 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 . . . '''). In Meritor, we acknowledged this consensus. See 477
U.S., at 70-71, 106 S.Ct., at 2407-2408 (" [T]he courts have consistently held
employers liable for the discriminatory discharges of employees by supervisory
personnel, whether or not the employer knew, or should have known, or
approved of the supervisor's actions''). 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.
46
In the context of this case, a tangible employment action would have taken the
form of a denial of a raise or a promotion. 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. Without endorsing the specific results of those
decisions, we think it prudent to import the concept of a tangible employment
action for resolution of the vicarious liability issue we consider here. A
tangible employment action constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.
Compare Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132, 136
(C.A.7 1993) ("A materially adverse change might be indicated by a
termination of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to a
particular situation''), with Flaherty v. Gas Research Institute, 31 F.3d 451, 456
(C.A.7 1994) (a "bruised ego'' is not enough); Kocsis v. Multi-Care
Management, Inc., 97 F.3d 876, 887 (C.A.6 1996) (demotion without change in
pay, benefits, duties, or prestige insufficient) and Harlston v. McDonnell
Douglas Corp., 37 F.3d 379, 382 (C.A.8 1994) (reassignment to more
inconvenient job insufficient).
47
48
Tangible employment actions are the means by which the supervisor brings the
official power of the enterprise to bear on subordinates. A tangible employment
decision requires an official act of the enterprise, a company act. The decision
in most cases is documented in official company records, and may be subject to
review by higher level supervisors. E.g., Shager v. Upjohn Co., 913 F.2d 398,
405 (C.A.7 1990) (noting that the supervisor did not fire plaintiff; rather, the
Career Path Committee did, but the employer was still liable because the
Committee functioned as the supervisor's "cat's-paw''). The supervisor often
must obtain the imprimatur of the enterprise and use its internal processes. See
Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (C.A.2
1992) ("From the perspective of the employee, the supervisor and the employer
merge into a single entity'').
49
50
a supervisor always is aided by the agency relation. See Meritor, 477 U.S., at
77, 106 S.Ct., at 2410-2411 (Marshall, J., concurring in judgment) (" [I]t is
precisely because the supervisor is understood to be clothed with the
employer's authority that he is able to impose unwelcome sexual conduct on
subordinates''). On the other hand, there are acts of harassment a supervisor
might commit which might be the same acts a co-employee would commit, and
there may be some circumstances where the supervisor's status makes little
difference.
51
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. 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. In particular, we are bound
by our holding in Meritor that agency principles constrain the imposition of
vicarious liability in cases of supervisory harassment. See Meritor, supra, at 72,
106 S.Ct., at 2408 ("Congress' decision to define "employer' to include any
"agent' of an employer, 42 U.S.C. 2000e(b), surely evinces an intent to place
some limits on the acts of employees for which employers under Title VII are
to be held responsible''). Congress has not altered Meritor's rule even though it
has made significant amendments to Title VII in the interim. See Illinois Brick
Co. v. Illinois, 431 U.S. 720, 736, 97 S.Ct. 2061, 2069-2070, 52 L.Ed.2d 707
(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'').
52
Publishing Co., 513 U.S. 352, 358, 115 S.Ct. 879, 884-885, 130 L.Ed.2d 852
(1995). As we have observed, Title VII borrows from tort law the avoidable
consequences doctrine, see Ford Motor Co. v. EEOC, 458 U.S. 219, 232, n. 15,
102 S.Ct. 3057, 3066, n. 15, 73 L.Ed.2d 721 (1982), and the considerations
which animate that doctrine would also support the limitation of employer
liability in certain circumstances.
53
IV
54
Relying on existing case law which held out the promise of vicarious liability
for all quid pro quo claims, see supra, at __-__, Ellerth focused all her attention
in the Court of Appeals on proving her claim fit within that category. Given our
explanation that the labels quid pro quo and hostile work environment are not
controlling for purposes of establishing employer liability, see supra, at __,
Ellerth should have an adequate opportunity to prove she has a claim for which
Burlington is liable.
55
Although Ellerth has not alleged she suffered a tangible employment action at
the hands of Slowik, which would deprive Burlington of the availability of the
affirmative defense, this is not dispositive. In light of our decision, Burlington is
still subject to vicarious liability for Slowik's activity, but Burlington should
have an opportunity to assert and prove the affirmative defense to liability. See
supra, at __-__.
56
For these reasons, we will affirm the judgment of the Court of Appeals,
reversing the grant of summary judgment against Ellerth. 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.
57
58
It is so ordered.
59
60
I agree with the Court's ruling that "the labels quid pro quo and hostile work
environment are not controlling for purposes of establishing employer liability.''
Ante, at __-__. I also subscribe to the Court's statement of the rule governing
employer liability, ante, at __, which is substantively identical to the rule the
Court adopts in Faragher v. Boca Raton, --- U.S. ----, 118 S.Ct. 2275, --L.Ed.2d ---- (1988).
61
62
The Court today manufactures a rule that employers are vicariously liable if
supervisors create a sexually hostile work environment, subject to an
affirmative defense that the Court barely attempts to define. This rule applies
even if the employer has a policy against sexual harassment, the employee
knows about that policy, and the employee never informs anyone in a position
of authority about the supervisor's conduct. 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. The standard of
employer liability should be the same in both instances: An employer should be
liable if, and only if, the plaintiff proves that the employer was negligent in
permitting the supervisor's conduct to occur.
63
64
65
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. See, e.g.,
Dennis v. Cty. of Fairfax, 55 F.3d 151, 153 (C.A.4 1995); Davis v. Monsanto
Chemical Co., 858 F.2d 345, 349 (C.A.6 1988), cert. denied, 490 U.S. 1110,
109 S.Ct. 3166, 104 L.Ed.2d 1028 (1989). Liability has thus been imposed only
if the employer is blameworthy in some way. See, e.g., Davis v. Monsanto
Chemical Co., supra, at 349; Snell v. Suffolk Cty., supra, at 1104; DeGrace v.
Rumsfeld, 614 F.2d 796, 805 (C.A.1 1980).
66
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. His acts, therefore, are the company's acts and
are properly chargeable to it. See 123 F.3d 490, 514 (1997) (Posner, C. J.,
dissenting); ante, at __ ("Tangible employment actions fall within the special
province of the supervisor. The supervisor has been empowered by the
company as a distinct class of agent to make economic decisions affecting other
employees under his or her control'').
67
If a supervisor creates a hostile work environment, however, he does not act for
the employer. As the Court concedes, a supervisor's creation of a hostile work
environment is neither within the scope of his employment, nor part of his
apparent authority. See ante, at __-__. Indeed, a hostile work environment is
antithetical to the interest of the employer. In such circumstances, an employer
should be liable only if it has been negligent. That is, liability should attach
only if the employer either knew, or in the exercise of reasonable care should
have known, about the hostile work environment and failed to take remedial
action.3
68
Sexual harassment is simply not something that employers can wholly prevent
without taking extraordinary measures-constant video and audio surveillance,
for example-that would revolutionize the workplace in a manner incompatible
with a free society. See 123 F.3d 490, 513 (Posner, C.J., dissenting). Indeed,
such measures could not even detect incidents of harassment such as the
comments Slowick allegedly made to respondent in a hotel bar. The most that
employers can be charged with, therefore, is a duty to act reasonably under the
circumstances. As one court recognized in addressing an early racial
harassment claim:
69
harassment will not be tolerated, and he can take all reasonable measures to
enforce this policy . . . . But once an employer has in good faith taken those
measures which are both feasible and reasonable under the circumstances to
combat the offensive conduct we do not think he can be charged with
discriminating on the basis of race.'' De Grace v. Rumsfeld, 614 F.2d 796, 805
(1980).
70
II
71
72
In justifying its holding, the Court refers to our comment in Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), that
the lower courts should look to "agency principles'' for guidance in determining
the scope of employer liability, id., at 72, 106 S.Ct., at 2408. The Court then
interprets the term "agency principles'' to mean the Restatement (Second) of
Agency (1957). The Court finds two portions of the Restatement to be relevant:
219(2)(b), which provides that a master is liable for his servant's torts if the
master is reckless or negligent, and 219(2)(d), which states that a master is
liable for his servant's torts when the servant is "aided in accomplishing the tort
by the existence of the agency relation.'' The Court 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.'' Ante, at __-__.
73
Thus although the Court implies that it has found guidance in both precedent
and statute-see ante, at __ ("The resulting federal rule, based on a body of case
law developed over time, is statutory interpretation pursuant to congressional
direction'')-its holding is a product of willful policymaking, pure and simple.
The only agency principle that justifies imposing employer liability in this
context is the principle 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. See supra, at ____.
75
The Court's decision is also in considerable tension with our holding in Meritor
that employers are not strictly liable for a supervisor's sexual harassment. See
Meritor Savings Bank, FSB v. Vinson, supra, at 72, 106 S.Ct., at 2408.
Although the Court recognizes an affirmative defense-based solely on its
divination of Title VII's gestalt, see ante, at __-it provides shockingly little
guidance about how employers can actually avoid vicarious liability. Instead, it
issues only Delphic pronouncements and leaves the dirty work to the lower
courts:
76
77 these statements mean for district courts ruling on motions for summary
What
judgment-the critical question for employers now subject to the vicarious liability
rule-remains a mystery. 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. See ibid. In practice,
therefore, employer liability very well may be the rule. But as the Court
acknowledges, this is the one result that it is clear Congress did not intend. See ante,
at __-__; Meritor Savings Bank, FSB v. Vinson, 477 U.S., at 72, 106 S.Ct., at 2408.
78
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. It thus truly boggles the
mind that the Court can claim that its holding will effect "Congress' intention to
promote conciliation rather than litigation in the Title VII context.'' Ante, at __.
All in all, today'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.'' Ante, at __-__.
***
79
80
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, 26 S.Ct.
282, 287, 50 L.Ed. 499.
This sequence of events is not surprising, given that the primary goal of the
Civil Rights Act of 1964 was to eradicate race discrimination and that the
statute's ban on sex discrimination was added as an eleventh-hour amendment
in an effort to kill the bill. See Barnes v. Costle, 561 F.2d 983, 987
(C.A.D.C.1977).
The Courts of Appeals relied on racial harassment cases when analyzing early
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. 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.'' Ante, at __. A
supervisor's threat to take adverse action against an employee who refuses his
sexual demands, if never carried out, may create a hostile work environment,
but that is all. Cases involving such threats, without more, should therefore be
analyzed as hostile work environment cases only. 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. Scalia,
The Strange Career of Quid Pro Quo Sexual Harassment, 21 Harv. J.L. & Pub.
Policy 307, 309-314 (1998).