FOR EDUCATIONAL USE ONLY
141 L.Ed.2d 633, 66 USLW 4634, 77 Fair Empl.Prac.Cas. (BNA) 1, 170 A.L.R. Fed. 677, 73 Empl. Prac. Dec. P 45,340, 98 Cal. Daily Op. Serv. 5029, 98 Daily Journal D.A.R. 6991, 98 CJ C.A.R. 3405, 11 Fla. L. Weekly Fed. S 692
Supreme Court of the United States
Burlington Industries Inc., Petitioner,
v.
Kimberly B. Ellerth
No. 97-569.
Argued April 22, 1998.
Decided June 26, 1998.
**2262 Justice KENNEDY delivered the opinion of the Court.
We decide whether, under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et *747 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.
I
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 the hierarchy of Burlington's management structure, Slowik was a midlevel
manager. Burlington has eight divisions, employing more than 22,000 people in
some 50 plants around the United States. Slowik was a vice president in one of
five business units within one of the divisions. He had authority to make
hiring and promotion decisions subject to the approval of his supervisor, who
signed the paperwork. See 912 F.Supp. 1101, 1119, n. 14
(N.D.Ill.1996). According to Slowik's supervisor, his position was
"not considered an upper- level management position," and he was
"not amongst the decision-making or policy-making hierarchy." Ibid. Slowik was
not Ellerth's immediate supervisor. Ellerth worked in a two-person office in
Chicago, and she answered to her office colleague, who in turn answered to
Slowik in New York.
Against a background of repeated boorish and offensive remarks and gestures
which Slowik allegedly made, Ellerth places particular emphasis on three
alleged incidents where Slowik's comments could be construed as threats to deny
her *748 tangible job benefits. In the summer of 1993, while on a
business trip, Slowik invited Ellerth to the hotel lounge, an invitation
Ellerth felt compelled to accept because Slowik was her boss. App. 155. When Ellerth
gave no encouragement to remarks Slowik made about her breasts, he told her to
"loosen up" and warned, "you know, Kim, I could make your life
very hard or very easy at Burlington." Id., at 156.
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.
In May 1994, Ellerth called Slowik, asking permission to insert a customer's
logo into a fabric sample. Slowik responded, "I don't have time for you
right now, Kim ...--unless you want to tell me what you're wearing." Id.,
at 78. Ellerth 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.
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. *749
In fact, she chose not to inform her **2263 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.
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. The District Court granted summary judgment to
Burlington. 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. There was no triable
issue of fact on the latter point, and the court noted Ellerth had not used
Burlington's internal complaint procedures. Id., at 1118. Although Ellerth's claim was
framed as a hostile work environment complaint, the District Court observed
there was a quid pro quo "component" to the hostile
environment. Id., at 1121. Proceeding from the premise that
an employer faces vicarious liability for quid pro quo harassment, the
District Court thought it necessary to apply a negligence standard because the quid
pro quo merely contributed to the hostile work environment. See id., at 1123. The District Court also dismissed
Ellerth's constructive discharge claim.
The Court of Appeals en banc reversed in a decision which produced eight separate
opinions and no consensus for a controlling rationale. The judges were able to
agree on the problem they confronted: Vicarious liability, not failure to
comply with a duty of care, was the essence of Ellerth's case against
Burlington on appeal. 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. *750 Jansen v. Packaging Corp. of
America, 123 F.3d 490, 494 (C.A.7
1997) (per curiam ). With the exception of Judges Coffey and
Easterbrook, the judges also agreed Ellerth's claim could be categorized as one
of quid pro quo harassment, even though she had received the promotion
and had suffered no other tangible retaliation. Ibid.
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.
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.
Chief Judge Posner, joined by Judge Manion, disagreed. He asserted Ellerth
could not recover against Burlington despite having stated a quid pro quo
claim. According to Chief Judge Posner, an employer is subject to vicarious
liability for "act[s] that significantly alte[r] the terms or conditions
of employment," or "company act[s]." Id., at 515. In the emergent terminology, an
unfulfilled quid pro quo is a *751 mere threat to do a
company act rather than the act itself, and in these circumstances, an employer
can be found liable for its negligence only. Ibid. Chief
Judge Posner also found Ellerth failed to create a triable issue of fact as to
Burlington's negligence. Id., at 517.
Judge Coffey rejected all of the above approaches because he favored a uniform **2264
standard of negligence in almost all sexual harassment cases. Id., at 518.
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. 1086, 118 S.Ct. 876, 139
L.Ed.2d 865 (1998).
II
At the outset, we assume an important
proposition yet to be established before a trier of fact. It is a premise
assumed as well, in explicit or implicit terms, in the various opinions by the
judges of the Court of Appeals. The premise is: A trier of fact could find in
Slowik's remarks numerous threats to retaliate against Ellerth if she denied
some sexual liberties. The threats, however, were not carried out or fulfilled.
Cases based on threats which are carried out are referred to often as quid
pro quo cases, as distinct from bothersome attentions or sexual remarks
that are sufficiently severe or pervasive to create a hostile work environment.
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.
Section 703(a) of Title VII forbids
"an employer--
"(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or *752 privileges of
employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1).
"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).
In Meritor, the
terms served a specific and limited purpose. There we considered whether the
conduct in question constituted discrimination in the terms or conditions of
employment in violation of Title VII. We assumed, and with adequate reason,
that if an employer demanded sexual favors from an employee in return for a job
benefit, discrimination with respect to terms or conditions of employment was
explicit. Less obvious was whether an employer's sexually demeaning behavior
altered terms or conditions of employment in violation of Title VII. We
distinguished between quid pro quo claims and hostile environment
claims, see 477 U.S., at 65, 106 S.Ct., at
2404-2405, and said both were cognizable under Title VII, though the
latter requires harassment that is severe or pervasive. Ibid. 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.
The distinction was not discussed for its bearing upon an employer's liability
for an employee's discrimination. On this question Meritor held,
with no further specifics, that agency principles controlled. Id., at 72, 106 S.Ct., at 2408.
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 *753 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, 185-186 (C.A.6),
cert. denied, 506 U.S. 1041, 113 S.Ct. 831, 121
L.Ed.2d 701 (1992); **2265 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:
"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.
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 *754 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. 75, 81, 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 2262-2263. 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.
When we assume discrimination can be proved, however, the factors we discuss
below, and not the categories quid pro quo and hostile work environment,
will be controlling on the issue of vicarious liability. That is the question
we must resolve.
III
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. We
turn to principles of agency law, for the term "employer" is defined
under Title VII to include "agents." 42 U.S.C. § 2000e(b);
see Meritor, supra, at 72, 106 S.Ct., at 2408-2409. In express
terms, Congress has directed federal courts to interpret Title VII based on
agency principles. Given such an explicit instruction, we conclude a uniform
and predictable standard must be established as a matter of federal law. We
rely "on the general common law of agency, rather than on the law of any
particular State, to give meaning to these *755 terms." Community for Creative
Non-Violence v. Reid, 490 U.S. 730,
740, 109 S.Ct. 2166, 2173, 104 L.Ed.2d 811 (1989). The resulting
federal rule, based on a body of case law developed over time, is statutory
interpretation pursuant to congressional direction. 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." Atherton v. FDIC, 519 U.S. 213, 218, 117 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 **2266
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).
As Meritor
acknowledged, the Restatement (Second) of Agency (1957) (hereinafter
Restatement) is a useful beginning point for a discussion of general agency
principles. 477 U.S., at 72, 106 S.Ct., at
2408. 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." Ibid. The EEOC
has issued Guidelines governing sexual harassment claims under Title VII, but
they provide little guidance on the issue of employer liability for supervisor
harassment. 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").
A
Section 219(1) of the Restatement sets
out a central principle of agency law:
*756 "A master is subject to liability for the torts of his
servants committed while acting in the scope of their employment."
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.
As Courts of Appeals have recognized, a supervisor acting out of gender-based
animus or a desire to fulfill sexual urges may not be actuated by a purpose to
serve the employer. See, e.g., Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1444 (C.A.10 1997), vacated
on other grounds, 524 U.S. 947, 118 S.Ct. 2364, 141
L.Ed.2d 732 (1998); Torres v. Pisano, 116 F.3d 625, 634, n. 10 (C.A.2 1997). But
see Kauffman v. Allied Signal,
Inc., 970 F.2d, at 184- 185
(holding harassing supervisor acted within scope of employment, *757
but employer was not liable because of its quick and effective remediation).
The harassing supervisor often acts for personal motives, motives unrelated and
even antithetical to the objectives of the employer. Cf. Mechem, supra,
§ 368 ("[F]or the time being [the supervisor] is conspicuously and
unmistakably seeking a personal end"); see also Restatement § 235,
Illustration 2 (tort committed while "[a]cting purely from personal ill will"
not within the scope of employment); id., Illustration 3 (tort committed
in retaliation for failing to pay the employee a bribe not within the scope of
employment). There are instances, of course, where a supervisor engages in
unlawful discrimination with the purpose, mistaken or otherwise, to serve the
employer. E.g., Sims v. Montgomery County
Comm'n, 766 F.Supp. 1052, 1075
(M.D.Ala.1990) (supervisor acting in scope of employment where
employer has a policy of discouraging women from seeking advancement **2267
and "sexual harassment was simply a way of furthering that policy").
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).
The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment.
*758 B
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:
"(2) A master is not subject to liability for the torts of his servants
acting outside the scope of their employment, unless:
"(a) the master intended the conduct or the consequences, or
"(b) the master was negligent or reckless, or
"(c) the conduct violated a non-delegable duty of the master, or
"(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."
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").
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.
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. *759 §
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.
Section 219(2)(d) concerns vicarious liability for intentional torts committed
by an employee when the employee uses apparent authority (the apparent
authority standard), or when the employee "was aided in accomplishing the
tort by the existence of the agency relation" (the aided in the agency
relation standard). Ibid. As other federal decisions have done in
discussing vicarious liability for supervisor harassment, e.g., Henson
v. Dundee, 682 F.2d 897, 909 (C.A.11 1982), we begin with § 219(2)(d).
C
As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, **2268 as distinct from where the agent threatens to misuse actual power. Compare Restatement § 6 (defining "power") with § 8 (defining "apparent authority"). In the usual case, a supervisor's harassment involves misuse of actual power, not the false impression of its existence. Apparent authority analysis therefore is inappropriate in this context. If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one. 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"). When a party seeks to impose vicarious liability *760 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.
D
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. 1110, 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 1991) (race
discrimination); see also 29 C.F.R. § 1604.11(d) (1997)
("knows or should have known" standard of liability for cases of
harassment between "fellow employees"). The aided in the agency
relation standard, therefore, requires the existence of something more than the
employment relation itself.
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 ...' "). *761 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.
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 **2269 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).
When a supervisor makes a tangible employment decision, there is assurance the
injury could not have been inflicted *762 absent the agency
relation. A tangible employment action in most cases inflicts direct economic
harm. As a general proposition, only a supervisor, or other person acting with
the authority of the company, can cause this sort of injury. 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. See Gary, supra, at 1397; Henson, 682 F.2d, at 910; Barnes v. Costle, 561 F.2d 983, 996 (C.A.D.C.1977)
(MacKinnon, J., concurring). But one co-worker (absent some elaborate scheme)
cannot dock another's pay, nor can one co-worker demote another. 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.
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").
For these reasons, a tangible
employment action taken by the supervisor becomes for Title VII purposes the
act of the employer. 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 *763 against a subordinate. In that
instance, it would be implausible to interpret agency principles to allow an
employer to escape liability, as Meritor itself
appeared to acknowledge. See, supra, at 2268.
Whether the agency relation aids in commission of supervisor harassment which does
not culminate in a tangible employment action is less obvious. Application of
the standard is made difficult by its malleable terminology, which can be read
to either expand or limit liability in the context of supervisor harassment. 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. 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 coemployee would commit, and there may be some circumstances where
the supervisor's status makes little difference.
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. **2270
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 id., 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 *764
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").
Although Meritor
suggested the limitation on employer liability stemmed from agency principles,
the Court acknowledged other considerations might be relevant as well. See 477 U.S., at 72, 106 S.Ct., at
2408 ("common-law principles may not be transferable in all
their particulars to Title VII"). For example, Title VII is designed to
encourage the creation of antiharassment policies and effective grievance mechanisms.
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, 104 S.Ct. 1621, 1635, 80
L.Ed.2d 41 (1984), and the EEOC's policy of encouraging the
development of grievance procedures. See 29 C.F.R. § 1604.11(f) (1997);
EEOC Policy Guidance on Sexual Harassment, 8 BNA FEP Manual 405:6699 (Mar. 19,
1990). To the extent limiting employer liability could encourage employees to
report harassing conduct before it becomes severe or pervasive, it would also
serve Title VII's deterrent purpose. See McKennon v. Nashville Banner
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.
In order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), also decided today. *765 An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. 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. Rule Civ. Proc. 8(c). 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. 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. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any 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. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.
**2271 IV
Relying on existing case law which
held out the promise of vicarious liability for all quid pro quo claims,
see supra, at 2264-2265, 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 2265, Ellerth *766 should have an adequate opportunity to
prove she has a claim for which Burlington is liable.
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
2270.
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.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice GINSBURG, concurring in the judgment.
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 2271. I also subscribe to the Court's
statement of the rule governing employer liability, ante, at 2270, which
is substantive
ly identical to the rule the Court adopts
in Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1988).
Justice THOMAS, with whom Justice SCALIA joins, dissenting.
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 *767 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.
I
Years before sexual harassment was recognized as "discriminat[ion] ... because of ... sex," 42 U.S.C. § 2000e-2(a)(1), the Courts of Appeals considered whether, and when, a racially hostile work environment could violate Title VII. [FN1] In the landmark case Rogers v. EEOC, 454 F.2d 234 (1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972), the Court of Appeals for the Fifth Circuit held that the practice of racially segregating patients in a doctor's office could amount to discrimination in " 'the terms, conditions, or privileges' " of employment, thereby violating Title VII. 454 F.2d, at 238 (quoting 42 U.S.C. § 2000e-2(a)(1)). The principal opinion in the case concluded that employment discrimination was not limited to the "isolated and distinguishable events" of "hiring, firing, and promoting." 454 F.2d, at 238 (opinion of Goldberg, J.). Rather, Title VII could also be violated by a work environment "heavily polluted with discrimination," because of the deleterious effects of such an **2272 atmosphere on an employee's well-being. Ibid.
FN1. 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).
Accordingly, after Rogers, a
plaintiff claiming employment discrimination based upon race could assert a
claim for a racially hostile work environment, in addition to the classic *768
claim of so-called "disparate treatment." A disparate treatment claim
required a plaintiff to prove an adverse employment consequence and
discriminatory intent by his employer. See 1 B. Lindemann & P. Grossman,
Employment Discrimination Law 10-11 (3d ed.1996). 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. See, e.g.,
Snell v. Suffolk Cty., 782 F.2d 1094, 1103 (C.A.2 1986)
("To establish a hostile atmosphere, ... plaintiffs must prove more than a
few isolated incidents of racial enmity"); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (C.A.8 1981) (no
violation of Title VII from infrequent use of racial slurs). This is the same
standard now used when determining whether sexual harassment renders a work
environment hostile. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21, 114 S.Ct. 367,
370- 371, 126 L.Ed.2d 295 (1993) (actionable sexual harassment
occurs when the workplace is "permeated with discriminatory
intimidation, ridicule, and insult" (emphasis added; internal quotation
marks and citation omitted)).
In race discrimination cases, employer liability has turned on whether the
plaintiff has alleged an adverse employment consequence, such as firing or
demotion, or a hostile work environment. If a supervisor takes an adverse
employment action because of race, causing the employee a tangible job
detriment, the employer is vicariously liable for resulting damages. See ante,
at 2268. This is because such actions are company acts that can be
performed only by the exercise of specific authority granted by the employer,
and thus the supervisor acts as the employer. 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. 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., *769 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).
This distinction applies with equal force in cases of sexual harassment. [FN2] 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 (C.A.7 1997)
(Posner, C. J., dissenting); ante, at 2269 ("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").
FN2. The Courts of Appeals relied on racial harassment cases when analyzing early claims of discrimination based upon a supervisor's sexual harassment. For example, when the Court of Appeals for the District of Columbia Circuit held that a work environment poisoned by a supervisor's "sexually stereotyped insults and demeaning propositions" could itself violate Title VII, its principal authority was Judge Goldberg's opinion in Rogers v. EEOC, 454 F.2d 234 (C.A.5 1971). See Bundy v. Jackson, 641 F.2d 934, 944 (C.A.D.C.1981); see also Henson v. Dundee, 682 F.2d 897, 901 (C.A.11 1982). So, too, this Court relied on Rogers when in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), it recognized a cause of action under Title VII for sexual harassment. See id., at 65-66, 106 S.Ct., at 2404-2405.
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 2265-2268. 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 **2273 only if the employer either
knew, or in the exercise of *770 reasonable care should have known,
about the hostile work environment and failed to take remedial action. [FN3]
FN3. 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 2265. 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).
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, at 513
(Posner, C.J., dissenting). Indeed, such measures could not even detect incidents
of harassment such as the comments Slowik 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:
"It may not always be within an employer's power to guarantee an
environment free from all bigotry.... [H]e can let it be known, however, that
racial 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." DeGrace v. Rumsfeld, 614 F.2d 796, 805 (1980).
*771 Under a negligence standard, Burlington cannot be held
liable for Slowik's conduct. Although respondent alleged a hostile work
environment, she never contended that Burlington had been negligent in
permitting the harassment to occur, and there is no question that Burlington
acted reasonably under the circumstances. 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. See ante, at 2262. Burlington therefore cannot be charged with
knowledge of Slowik's alleged harassment or with a failure to exercise
reasonable care in not knowing about it.
II
Rejecting a negligence standard, the Court instead imposes a
rule of vicarious employer liability, subject to a vague affirmative defense,
for the acts of supervisors who wield no delegated authority in creating a
hostile work environment. This rule is a whole-cloth creation that draws no
support from the legal principles on which the Court claims it is based.
Compounding its error, the Court fails to explain how employers can rely upon
the affirmative defense, thus ensuring a continuing reign of confusion in this
important area of the law.
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 *772 appears to reason that a supervisor is "aided ...
by ... the agency relation" in creating a hostile work environment because
the supervisor's **2274 "power and authority invests his or
her harassing conduct with a particular threatening character." Ante,
at 2269.
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.
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." Rather, as demonstrated by
the Restatement's illustrations, liability under § 219(2)(d) depends upon the
plaintiff's belief that the agent acted in the ordinary course of business or
within the scope of his apparent authority. [FN4] In this day and age, no sexually
harassed employee can reasonably believe that a harassing supervisor is
conducting the official business of the company or acting on its behalf.
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. See ante, at 2265-2268.
FN4. 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).
Thus although the Court implies that it has found guidance in both precedent
and statute--see ante, at 2265 ("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 *773 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 2273.
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
2270--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:
"While proof that an employer had promulgated an anti-harassment 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. 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." Ante, at 2270.
What these statements mean for district courts ruling on motions for summary
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. *774 But as the Court acknowledges,
this is the one result that it is clear Congress did not intend. See ante,
at 2269-2270; Meritor Savings Bank, FSB v.
Vinson, supra, at 72, 106 S.Ct., at
2408.
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 **2275
than litigation in the Title VII context." Ante, at 2270. 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 2263-2264.
* * *
Popular misconceptions notwithstanding, sexual harassment is
not a freestanding federal tort, but a form of employment discrimination. As such,
it should be treated no differently (and certainly no better) than the other
forms of harassment that are illegal under Title VII. 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. I therefore respectfully dissent.