Burlington Industries, Inc. v. Ellerth
524 U.S. 742 (1998)
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Rule of Law:
An employer is vicariously liable for an actionable hostile work environment created by a supervisor. When no tangible employment action is taken, the employer may raise an affirmative defense by showing it exercised reasonable care to prevent and correct harassing behavior and that the employee unreasonably failed to utilize preventive or corrective opportunities.
Facts:
- From March 1993 to May 1994, Kimberly Ellerth worked as a salesperson for Burlington Industries.
- During her employment, Ellerth's supervisor, Ted Slowik, subjected her to constant boorish and offensive remarks of a sexual nature.
- On a business trip, Slowik told Ellerth to "loosen up" and warned her, "I could make your life very hard or very easy at Burlington."
- During a promotion interview, Slowik commented that Ellerth was not "loose enough" and rubbed her knee.
- Despite Slowik's comments, Ellerth received the promotion and suffered no other tangible, adverse job consequences.
- Ellerth was aware of Burlington's policy against sexual harassment but did not inform anyone in authority about Slowik's conduct.
- Ellerth eventually quit her job, initially providing reasons unrelated to the harassment, but later sent a letter attributing her resignation to Slowik's behavior.
Procedural Posture:
- Kimberly Ellerth filed a lawsuit against Burlington Industries in the U.S. District Court for the Northern District of Illinois, alleging sexual harassment in violation of Title VII.
- The District Court (trial court) granted summary judgment in favor of Burlington Industries.
- Ellerth, as the appellant, appealed the decision to the U.S. Court of Appeals for the Seventh Circuit.
- The Court of Appeals, sitting en banc, reversed the District Court's judgment, finding that Burlington Industries, the appellee, could be vicariously liable.
- The U.S. Supreme Court granted certiorari to review the decision of the Court of Appeals.
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Issue:
Under Title VII, is an employer vicariously liable for a supervisor's sexual harassment that creates a hostile work environment but does not result in a tangible employment action against the employee?
Opinions:
Majority - Justice Kennedy
Yes. An employer is vicariously liable for an actionable hostile environment created by a supervisor with authority over the employee, even when no tangible employment action is taken. The court reasoned that the labels of 'quid pro quo' and 'hostile work environment' are not controlling for determining employer liability. Instead, agency principles govern. While a supervisor's harassing conduct is typically outside the scope of employment, an employer is still liable when the supervisor's tortious conduct is aided by the agency relation. A supervisor is always aided by the agency relation when they take a tangible employment action (e.g., firing, demotion), making the employer strictly liable. In cases where no tangible action is taken, the employer is still vicariously liable but may raise a two-part affirmative defense: (1) that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. This framework balances Title VII's goals of preventing discrimination and encouraging employers and employees to take action to stop harassment.
Dissenting - Justice Thomas
No. An employer should be liable for a supervisor's creation of a hostile work environment only if the employer was negligent in permitting the supervisor’s conduct to occur. The majority's holding manufactures a new rule of vicarious liability that is inconsistent with the legal standard applied in racial harassment cases, which requires a showing of employer negligence. A supervisor creating a hostile environment is not acting for the employer or within the scope of their employment; therefore, liability should only attach if the employer knew or should have known about the harassment and failed to act. The majority’s interpretation of the 'aided in the agency relation' standard is incorrect, and its new affirmative defense is vague and will only create more litigation.
Concurring - Justice Ginsburg
Yes. Justice Ginsburg concurred in the judgment, agreeing with the Court's ruling that the labels 'quid pro quo' and 'hostile work environment' are not controlling for employer liability. She fully subscribed to the rule governing employer liability adopted by the majority, noting that it was substantively identical to the rule adopted in the companion case, Faragher v. Boca Raton.
Analysis:
This decision significantly clarified the doctrine of employer liability for supervisor harassment under Title VII. It established a unified framework, moving away from the rigid distinction between quid pro quo and hostile environment claims for liability purposes. The key innovation is the affirmative defense, which creates strong incentives for employers to implement, publicize, and enforce effective anti-harassment policies and complaint procedures. By doing so, employers can potentially avoid liability for supervisory misconduct that does not result in a tangible employment action, while also encouraging employees to report harassment internally before it becomes severe or pervasive.
