FOR EDUCATIONAL USE ONLY 141 L.Ed.2d 662, 66 USLW
4643, 77 Fair Empl.Prac.Cas. (BNA) 14, 157 A.L.R. Fed. 663, 73 Empl. Prac. Dec.
P 45,341, 98 Cal. Daily Op. Serv. 5048, 98 Daily Journal D.A.R. 7009, 98 CJ
C.A.R. 3375, 11 Fla. L. Weekly Fed. S 699
Supreme Court of the United States
Beth Ann FARAGHER, Petitioner,
v.
CITY OF BOCA RATON.
No. 97-282.
Argued March 25, 1998.
Decided June 26, 1998.
*780 Justice SOUTER delivered the opinion of the Court.
This case calls for identification of the circumstances under which an employer
may be held liable under Title VII of the Civil Rights Act of 1964, 78 Stat.
253, as amended, 42 U.S.C. § 2000e et seq., for the acts of a
supervisory employee whose sexual harassment of subordinates has created a
hostile work environment amounting to employment discrimination. We hold that
an employer is vicariously liable for actionable discrimination caused by a
supervisor, but subject to an affirmative defense looking to the reasonableness
of the employer's conduct as well as that of a plaintiff victim.
I
Between 1985 and 1990, while attending
college, petitioner Beth Ann Faragher worked part time and during the summers
as an ocean lifeguard for the Marine Safety Section of the Parks and Recreation
Department of respondent, the City of Boca Raton, Florida (City). During this
period, Faragher's immediate supervisors were Bill Terry, David Silverman, and
Robert Gordon. In June 1990, Faragher resigned.
In 1992, Faragher brought an action against Terry, Silverman, and the City,
asserting claims under Title VII, Rev.Stat. § 1979, 42 U.S.C. § 1983, and Florida law. So far as it concerns the
Title VII claim, the complaint alleged that Terry and Silverman created a
"sexually hostile atmosphere" at the beach by repeatedly subjecting
Faragher and other female lifeguards to "uninvited and offensive
touching," by making lewd remarks, and by speaking of women in offensive
terms. The complaint contained specific allegations that Terry once said that
he would never promote a woman to the rank of lieutenant, and that Silverman
had said to Faragher, "Date me or clean the toilets for a year."
Asserting that *781 Terry and
Silverman were agents of the City, and that their conduct amounted to
discrimination in the "terms, conditions, and privileges" of her
employment, 42 U.S.C. § 2000e-2(a)(1), Faragher sought a judgment against
the City for nominal damages, costs, and attorney's fees.
Following a bench trial, the United States District Court for the Southern
District of Florida found that throughout Faragher's employment with the City,
Terry served as Chief of the Marine Safety Division, with authority to hire new
lifeguards (subject to the approval of higher management), to supervise all
aspects of the lifeguards' work assignments, to engage in counseling, to
deliver oral reprimands, and to make a record of any such discipline. 864 F.Supp. 1552, 1563-1564 (1994). Silverman was a Marine
Safety lieutenant from 1985 until June 1989, when he became a captain. Id., at 1555. Gordon began the employment period as a
lieutenant and at some point was promoted to the position of training captain.
In these positions, Silverman and Gordon were responsible for making the
lifeguards' daily assignments, and for supervising their work and fitness
training. Id., at 1564.
The lifeguards and supervisors were stationed at the city beach and worked out
of the Marine Safety Headquarters, a small one-story building containing an
office, a meeting room, and a single, unisex locker room with a shower. Id., at 1556. Their work routine was structured in a
"paramilitary configuration," id., at 1564, with a clear chain of command.
Lifeguards reported to lieutenants and captains, who reported to Terry. He was supervised
by the Recreation Superintendent, who in turn reported to a Director of Parks
and Recreation, answerable to the City Manager. Id., at 1555. The lifeguards had no significant
contact with higher city officials like the Recreation Superintendent. Id., at 1564.
In February 1986, the City adopted a sexual harassment policy, which it stated
in a memorandum from the City Manager *782
addressed to all employees. Id., at 1560. In May 1990, the City revised the policy
and reissued a statement of it. Ibid. Although the City may actually have circulated
the memos and statements to some employees, it completely failed to disseminate
its policy among employees of the Marine Safety Section, with the result that
Terry, Silverman, **2281
Gordon, and many lifeguards were unaware of it. Ibid.
From time to time over the course of Faragher's tenure at the Marine Safety
Section, between 4 and 6 of the 40 to 50 lifeguards were women. Id., at 1556. During that 5-year period, Terry
repeatedly touched the bodies of female employees without invitation, ibid., would put his arm around Faragher, with his
hand on her buttocks, id., at 1557, and once made contact with another
female lifeguard in a motion of sexual simulation, id., at 1556. He made crudely demeaning references to
women generally, id., at 1557, and once commented disparagingly on Faragher's shape, ibid. During a job interview with a woman he hired as
a lifeguard, Terry said that the female lifeguards had sex with their male
counterparts and asked whether she would do the same. Ibid.
Silverman behaved in similar ways. He once tackled Faragher and remarked that,
but for a physical characteristic he found unattractive, he would readily have
had sexual relations with her. Ibid. Another time, he pantomimed an act of oral sex. Ibid. Within earshot of the female lifeguards,
Silverman made frequent, vulgar references to women and sexual matters,
commented on the bodies of female lifeguards and beachgoers, and at least twice
told female lifeguards that he would like to engage in sex with them. Id., at 1557- 1558.
Faragher did not complain to higher management about Terry or Silverman.
Although she spoke of their behavior to Gordon, she did not regard these
discussions as formal complaints to a supervisor but as conversations with a
person she held in high esteem. Id., at 1559. Other female *783 lifeguards had similarly informal
talks with Gordon, but because Gordon did not feel that it was his place to do
so, he did not report these complaints to Terry, his own supervisor, or to any
other city official. Id., at 1559- 1560. Gordon responded to the complaints
of one lifeguard by saying that "the City just [doesn't] care." Id., at 1561.
In April 1990, however, two months before Faragher's resignation, Nancy
Ewanchew, a former lifeguard, wrote to Richard Bender, the City's Personnel
Director, complaining that Terry and Silverman had harassed her and other
female lifeguards. Id., at 1559. Following investigation of this complaint,
the City found that Terry and Silverman had behaved improperly, reprimanded
them, and required them to choose between a suspension without pay or the
forfeiture of annual leave. Ibid.
On the basis of these findings, the District Court concluded that the conduct
of Terry and Silverman was discriminatory harassment sufficiently serious to
alter the conditions of Faragher's employment and constitute an abusive working
environment. Id., at 1562-1563. The District Court then ruled that
there were three justifications for holding the City liable for the harassment
of its supervisory employees. First, the court noted that the harassment was
pervasive enough to support an inference that the City had "knowledge, or
constructive knowledge," of it. Id., at 1563. Next, it ruled that the City was liable
under traditional agency principles because Terry and Silverman were acting as
its agents when they committed the harassing acts. Id., at 1563-1564. Finally, the court observed that
Gordon's knowledge of the harassment, combined with his inaction,
"provides a further basis for imputing liability on [sic] the
City." Id., at 1564. The District Court then awarded Faragher
$1 in nominal damages on her Title VII claim. Id., at 1564-1565.
A panel of the Court of Appeals for the Eleventh Circuit reversed the judgment
against the City. *784 76 F.3d 1155 1996). Although the panel had "no trouble
concluding that Terry's and Silverman's conduct ... was severe and pervasive
enough to create an objectively abusive work environment," id., at 1162, it overturned the District Court's
conclusion that the City was liable. The panel ruled that Terry and Silverman
were not acting within the scope of their employment when they engaged in the
harassment, id., at 1166, that they were not aided in their
actions by the agency relationship, id., at 1166, n. 14, and that the City had no
constructive knowledge of the harassment by virtue of its pervasiveness or
Gordon's actual knowledge, id., at 1167, and n. 16.
**2282 In a 7-to-5 decision,
the full Court of Appeals, sitting en banc, adopted the panel's conclusion. 111 F.3d 1530 (1997). Relying on our decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106
S.Ct. 2399, 91 L.Ed.2d 49 (1986), and on the Restatement (Second) of Agency § 219 (1957) (hereinafter
Restatement), the court held that "an employer may be indirectly liable
for hostile environment sexual harassment by a superior: (1) if the harassment
occurs within the scope of the superior's employment; (2) if the employer
assigns performance of a nondelegable duty to a supervisor and an employee is
injured because of the supervisor's failure to carry out that duty; or (3) if
there is an agency relationship which aids the supervisor's ability or opportunity
to harass his subordinate." 111 F.3d, at 1534-1535.
Applying these principles, the court rejected Faragher's Title VII claim
against the City. First, invoking standard agency language to classify the
harassment by each supervisor as a "frolic" unrelated to his
authorized tasks, the court found that in harassing Faragher, Terry and
Silverman were acting outside of the scope of their employment and solely to
further their own personal ends. Id., at 1536-1537. Next, the court determined that the
supervisors' agency relationship with the City did not assist them in
perpetrating their harassment. Id., at 1537. Though noting that "a supervisor is
always aided in accomplishing hostile environment sexualharassment *785 by the existence of the agency relationship
with his employer because his responsibilities include close proximity to and
regular contact with the victim," the court held that traditional agency
law does not employ so broad a concept of aid as a predicate of employer
liability, but requires something more than a mere combination of agency
relationship and improper conduct by the agent. Ibid. Because neither Terry nor Silverman threatened
to fire or demote Faragher, the court concluded that their agency relationship
did not facilitate their harassment. Ibid.
The en banc court also affirmed the panel's ruling that the City lacked
constructive knowledge of the supervisors' harassment. The court read the
District Court's opinion to rest on an erroneous legal conclusion that any
harassment pervasive enough to create a hostile environment must a fortiori
also suffice to charge the employer with constructive knowledge. Id., at 1538. Rejecting this approach, the court
reviewed the record and found no adequate factual basis to conclude that the
harassment was so pervasive that the City should have known of it, relying on
the facts that the harassment occurred intermittently, over a long period of
time, and at a remote location. Ibid. In footnotes, the court also rejected the
arguments that the City should be deemed to have known of the harassment
through Gordon, id., at 1538, n. 9, or charged with constructive
knowledge because of its failure to disseminate its sexual harassment policy
among the lifeguards, id., at 1539, n. 11.
Since our decision in Meritor, Courts of Appeals have struggled to derive
manageable standards to govern employer liability for hostile environment harassment
perpetrated by supervisory employees. While following our admonition to find
guidance in the common law of agency, as embodied in the Restatement, the
Courts of Appeals have adopted different approaches. Compare, e.g., Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (C.A.10 1997),
vacated, 524 U.S. 947, 118 S.Ct. 2364, 141 L.Ed.2d 732 (1998); 111 F.3d 1530 (C.A.11 1997) (case below); *786 Gary v. Long, 59 F.3d 1391 (C.A.D.C.), cert. denied, 516 U.S. 1011, 116 S.Ct. 569, 133 L.Ed.2d 493 (1995); and Karibian v. Columbia University, 14 F.3d 773 (C.A.2),
cert. denied, 512 U.S. 1213, 114 S.Ct. 2693, 129 L.Ed.2d 824 (1994). We
granted certiorari to address the divergence, 522 U.S. 978, 118 S.Ct. 438, 139 L.Ed.2d 337 (1997), and now
reverse the judgment of the Eleventh Circuit and remand for entry of judgment
in Faragher's favor.
II
A
Under Title VII of the Civil Rights Act of 1964, "[i]t
shall be an unlawful employment practice for an employer ... to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate against
any individual **2283 with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a)(1). We have repeatedly made clear that
although the statute mentions specific employment decisions with immediate
consequences, the scope of the prohibition " 'is not limited to
"economic" or "tangible" discrimination,' " Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114
S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, supra, at 64, 106
S.Ct., at 2404), and that it covers more than " 'terms' and 'conditions'
in the narrow contractual sense." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75,
78, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201 (1998). Thus, in Meritor we held that sexual harassment so "severe
or pervasive" as to " 'alter the conditions of [the victim's]
employment and create an abusive working environment' " violates Title
VII. 477 U.S., at 67, 106 S.Ct., at 2405-2406 (quoting Henson v. Dundee, 682 F.2d 897, 904 (C.A.11 1982)).
In thus holding that environmental claims are covered by the statute, we drew
upon earlier cases recognizing liability for discriminatory harassment based on
race and national origin, see, e.g., Rogers v. EEOC, 454 F.2d 234
(C.A.5 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972); Firefighters Institute for Racial Equality v. St. Louis,
549 F.2d 506 (C.A.8), cert. denied sub nom. Banta v. United States, 434 U.S.
819, 98 S.Ct. 60, 54 L.Ed.2d 76 (1977), *787 just as we have also followed the lead
of such cases in attempting to define the severity of the offensive conditions
necessary to constitute actionable sex discrimination under the statute. See, e.g.,
Rogers, supra, at 238 ("[M]ere utterance of an
ethnic or racial epithet which engenders offensive feelings in an
employee" would not sufficiently alter terms and conditions of employment
to violate Title VII). [FN1]
See also Daniels v. Essex Group, Inc., 937 F.2d 1264, 1271-1272
(C.A.7 1991); 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); Snell v. Suffolk County, 782 F.2d 1094, 1103 (C.A.2 1986);
1 B. Lindemann & P. Grossman, Employment Discrimination Law 349, and nn.
36-37 (3d ed.1996) (hereinafter Lindemann & Grossman) (citing cases
instructing that "[d]iscourtesy or rudeness should not be confused with
racial harassment" and that "a lack of racial sensitivity does not,
alone, amount to actionable harassment").
FN1. Similarly, Courts of Appeals in sexual harassment cases have properly drawn on standards developed in cases involving racial harassment. See, e.g., Carrero v. New York City Housing Auth., 890 F.2d 569, 577 (C.A.2 1989) (citing Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (C.A.2 1987), a case of racial harassment, for the proposition that incidents of environmental sexual harassment "must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive"). Although racial and sexual harassment will often take different forms, and standards may not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment.
So, in Harris, we explained that in order to be actionable
under the statute, a sexually objectionable environment must be both
objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so. 510 U.S., at 21-22, 114 S.Ct., at 370-371. We directed courts
to determine whether an environment is sufficiently hostile or abusive by
"looking at all the circumstances," including the "frequency of
the discriminatory conduct; its severity; whether it is physically threatening *788 or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance." Id., at 23, 114 S.Ct., at 371. Most recently, we
explained that Title VII does not prohibit "genuine but innocuous
differences in the ways men and women routinely interact with members of the
same sex and of the opposite sex." Oncale, 523 U.S., at 81, 118 S.Ct., at 1003. A
recurring point in these opinions is that "simple teasing," id., at 82, 118 S.Ct., at 1003, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the "terms and conditions of employment."
These standards for judging hostility
are sufficiently demanding to ensure that Title VII does not become a
"general civility **2284
code." Id., at 80, 118 S.Ct., at 1002. Properly applied, they
will filter out complaints attacking "the ordinary tribulations of the
workplace, such as the sporadic use of abusive language, gender-related jokes,
and occasional teasing." B. Lindemann & D. Kadue, Sexual Harassment in
Employment Law 175 (1992) (hereinafter Lindemann & Kadue) (footnotes
omitted). We have made it clear that conduct must be extreme to amount to a
change in the terms and conditions of employment, and the Courts of Appeals
have heeded this view. See, e.g., Carrero v. New York City Housing Auth., 890 F.2d 569, 577-578 (C.A.2 1989); Moylan v. Maries County, 792 F.2d 746, 749-750 (C.A.8
1986); See also 1 Lindemann & Grossman 805-807, n. 290 (collecting
cases granting summary judgment for employers because the alleged harassment
was not actionably severe or pervasive).
While indicating the substantive contours of the hostile environments forbidden
by Title VII, our cases have established few definite rules for determining
when an employer will be liable for a discriminatory environment that is
otherwise actionably abusive. Given the circumstances of many of the litigated
cases, including some that have come to us, it is not surprising that in many
of them, the issue has been joined over the sufficiency of the abusive conditions,
not the *789 standards for
determining an employer's liability for them. There have, for example, been
myriad cases in which District Courts and Courts of Appeals have held employers
liable on account of actual knowledge by the employer, or high-echelon
officials of an employer organization, of sufficiently harassing action by
subordinates, which the employer or its informed officers have done nothing to
stop. See, e.g., Katz v. Dole, 709 F.2d 251, 256
(C.A.4 1983) (upholding employer liability because the
"employer's supervisory personnel manifested unmistakable acquiescence in
or approval of the harassment"); EEOC v. Hacienda Hotel, 881 F.2d 1504, 1516 (C.A.9 1989) (employer liable where hotel manager did not
respond to complaints about supervisors' harassment); Hall v. Gus Constr. Co., 842 F.2d 1010, 1016 (C.A.8
1988) (holding employer liable for harassment by co-workers because
supervisor knew of the harassment but did nothing). In such instances, the
combined knowledge and inaction may be seen as demonstrable negligence, or as
the employer's adoption of the offending conduct and its results, quite as if
they had been authorized affirmatively as the employer's policy. Cf. Oncale, supra, at 77, 118 S.Ct., at 1001 (victim
reported his grounds for fearing rape to company's safety supervisor, who
turned him away with no action on complaint).
Nor was it exceptional that standards for binding the employer were not in
issue in Harris, supra. In that case of discrimination by
hostile environment, the individual charged with creating the abusive atmosphere
was the president of the corporate employer, 510 U.S., at 19, 114 S.Ct., at 369, who was indisputably
within that class of an employer organization's officials who may be treated as
the organization's proxy. Burns v. McGregor Electronic Industries, Inc., 955
F.2d 559, 564 (C.A.8 1992) (employer-company liable where harassment was
perpetrated by its owner); see Torres v. Pisano, 116 F.3d 625, 634-635, and n. 11 (C.A.2)
(noting that a supervisor may hold a sufficiently high position "in the
management hierarchy of the company for his actions to be imputed *790 automatically to the employer"),
cert. denied, 522 U.S. 997, 118 S.Ct. 563, 139 L.Ed.2d 404 (1997); cf. Katz, supra, at 255 ("Except in situations
where a proprietor, partner or corporate officer participates personally in the
harassing behavior," an employee must "demonstrat[e] the propriety of
holding the employer liable").
Finally, there is nothing remarkable in the fact that claims against employers
for discriminatory employment actions with tangible results, like hiring,
firing, promotion, compensation, and work assignment, have resulted in employer
liability once the discrimination was shown. See Meritor, 477 U.S., at 70- 71, 106 S.Ct., at 2407-2408
(noting that "courts have consistently held employers liable for the
discriminatory discharges of employees by supervisory personnel, whether or not
the employer knew, should have known, or approved of the supervisor's
actions"); id., at 75, 106 S.Ct., at 2409-2410 (Marshall, J.,
concurring in judgment) ("[W]hen a supervisor **2285 discriminatorily fires or refuses to
promote a black employee, that act is, without more, considered the act of the
employer"); see also Anderson v. Methodist Evangelical Hospital, Inc.,
464 F.2d 723, 725 (C.A.6 1972) (imposing liability on employer for racially
motivated discharge by low-level supervisor, although the "record clearly
shows that [its] record in race relations ... is exemplary").
A variety of reasons have been invoked for this apparently unanimous rule. Some
courts explain, in a variation of the "proxy" theory discussed above,
that when a supervisor makes such decisions, he "merges" with the
employer, and his act becomes that of the employer. See, e.g., Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957
F.2d 59, 62 (C.A.2 1992) ("The supervisor is deemed to act on behalf
of the employer when making decisions that affect the economic status of the
employee. From the perspective of the employee, the supervisor and the employer
merge into a single entity"); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316
(C.A.11 1989) ("When a supervisor requires sexual favors as a quid
pro quo for job benefits, the supervisor, by definition, acts as the
company"); see also Lindemann & *791
Grossman 776 (noting that courts hold employers "automatically
liable" in quid pro quo cases because the "supervisor's
actions, in conferring or withholding employment benefits, are deemed as a
matter of law to be those of the employer"). Other courts have suggested
that vicarious liability is proper because the supervisor acts within the scope
of his authority when he makes discriminatory decisions in hiring, firing,
promotion, and the like. See, e.g., Shager v. Upjohn Co., 913 F.2d
398, 405 (C.A.7 1990) ("[A] supervisory employee who fires
a subordinate is doing the kind of thing that he is authorized to do, and the
wrongful intent with which he does it does not carry his behavior so far beyond
the orbit of his responsibilities as to excuse the employer" (citing
Restatement § 228)). Others have suggested that vicarious liability is
appropriate because the supervisor who discriminates in this manner is aided by
the agency relation. See, e.g., Nichols v. Frank, 42 F.3d 503,
514 (C.A.9 1994). Finally, still other courts have endorsed both
of the latter two theories. See, e.g., Harrison, 112 F.3d, at 1443;
Henson, 682 F.2d, at 910.
The soundness of the results in these cases (and their continuing vitality), in
light of basic agency principles, was confirmed by this Court's only discussion
to date of standards of employer liability, in Meritor, supra, which involved a claim of
discrimination by a supervisor's sexual harassment of a subordinate over an
extended period. In affirming the Court of Appeals's holding that a hostile
atmosphere resulting from sex discrimination is actionable under Title VII, we
also anticipated proceedings on remand by holding agency principles relevant in
assigning employer liability and by rejecting three per se rules of
liability or immunity. 477 U.S., at 70-72, 106 S.Ct., at 2407-2408. We observed that
the very definition of employer in Title VII, as including an
"agent," id., at 72, 106 S.Ct., at 2408, expressed Congress's
intent that courts look to traditional principles of the law of agency in
devising standards of employer liability in those instances where liability for
the actions of a supervisory *792
employee was not otherwise obvious, ibid., and although we cautioned that "common-law
principles may not be transferable in all their particulars to Title VII,"
we cited the Restatement §§ 219-237 with general approval. Ibid.
We then proceeded to reject two limitations on employer liability, while
establishing the rule that some limitation was intended. We held that neither
the existence of a company grievance procedure nor the absence of actual notice
of the harassment on the part of upper management would be dispositive of such
a claim; while either might be relevant to the liability, neither would result
automatically in employer immunity. Ibid. Conversely, we held that Title VII placed
some limit on employer responsibility for the creation of a discriminatory
environment by a supervisor, and we held that Title VII does not make employers
"always automatically liable for sexual harassment by their supervisors,"
ibid., contrary to the view of the Court of
Appeals, which had held that "an employer is strictly liable for a hostile
environment created by a supervisor's sexual advances, even though the employer
neither knew nor **2286
reasonably could have known of the alleged misconduct," id., at 69- 70, 106 S.Ct., at 2406-2407.
Meritor's statement of the law is the foundation on
which we build today. Neither party before us has urged us to depart from our
customary adherence to stare decisis in statutory interpretation, Patterson v. McLean Credit Union, 491 U.S. 164, 172-173,
109 S.Ct. 2363, 2370-2371, 105 L.Ed.2d 132 (1989) (stare decisis has
"special force" in statutory interpretation). And the force of
precedent here is enhanced by Congress's amendment to the liability provisions
of Title VII since the Meritor decision, without providing any modification of
our holding. Civil Rights Act of 1991, § 102, 105 Stat. 1072, 42 U.S.C. § 1981a; see Keene Corp. v. United States, 508 U.S. 200, 212, 113 S.Ct.
2035, 2043, 124 L.Ed.2d 118 (1993) (applying the "presumption that
Congress was aware of [prior] judicial interpretations and, in effect, adopted
them"). See also infra, at 2291, n. 4.
*793 B
The Court of Appeals identified, and rejected, three possible grounds drawn from agency law for holding the City vicariously liable for the hostile environment created by the supervisors. It considered whether the two supervisors were acting within the scope of their employment when they engaged in the harassing conduct. The court then inquired whether they were significantly aided by the agency relationship in committing the harassment, and also considered the possibility of imputing Gordon's knowledge of the harassment to the City. Finally, the Court of Appeals ruled out liability for negligence in failing to prevent the harassment. Faragher relies principally on the latter three theories of liability.
1
A "master is subject to liability for the torts of his
servants committed while acting in the scope of their employment."
Restatement § 219(1). This doctrine has traditionally defined the
"scope of employment" as including conduct "of the kind [a
servant] is employed to perform," occurring "substantially within the
authorized time and space limits," and "actuated, at least in part,
by a purpose to serve the master," but as excluding an intentional use of
force "unexpectable by the master." Id., § 228(1).
Courts of Appeals have typically held, or assumed, that conduct similar to the
subject of this complaint falls outside the scope of employment. See, e.g., Harrison, 112 F.3d, at 1444
(sexual harassment " 'simply is not within the job description of any
supervisor or any other worker in any reputable business' "); 111 F.3d, at 1535-1536 (case below); Andrade v. Mayfair Management, Inc., 88 F.3d 258, 261
(C.A.4 1996) ("[I]llegal sexual harassment is ... beyond the scope of
supervisors' employment"); Gary, 59 F.3d, at 1397 (harassing supervisor acts
outside the scope of his employment *794
in creating hostile environment); Nichols v. Frank, 42 F.3d 503, 508 (C.A.9 1994)
("The proper analysis for employer liability in hostile environment cases
is ... not whether an employee was acting within his 'scope of
employment' "); Bouton v. BMW of North Am., Inc., 29 F.3d 103, 107 (C.A.3
1994) (sexual harassment is outside scope of employment); see also Burlington Industries, Inc. v. Ellerth, decided with Jansen v. Packaging Corp. of America, 123 F.3d 490, 561
(C.A.7 1997) (en banc) (Manion, J., concurring and dissenting)
(supervisor's harassment would fall within scope of employment only in
"the rare case indeed"), aff'd, 524 U.S. 1086, 118 S.Ct. 876, 139 L.Ed.2d 865 (1998);
Lindemann & Grossman 812 ("Hostile environment sexual harassment
normally does not trigger respondeat superior liability because sexual
harassment rarely, if ever, is among the official duties of a
supervisor"). But cf. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1351- 1352 (C.A.4
1995) (holding employer vicariously liable in part based on finding that
the supervisor's rape of employee was within the scope of employment); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 184 (C.A.6)
(holding that a supervisor's harassment was within the scope of his employment,
but nevertheless requiring the victim to show that the employer failed to
respond adequately when it learned of the harassment), cert. denied, 506 U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701 (1992). In so
doing, the courts have emphasized that harassment consisting of unwelcome
remarks **2287 and touching is
motivated solely by individual desires and serves no purpose of the employer.
For this reason, courts have likened hostile environment sexual harassment to
the classic "frolic and detour" for which an employer has no
vicarious liability.
These cases ostensibly stand in some tension with others arising outside Title
VII, where the scope of employment has been defined broadly enough to hold
employers vicariously liable for intentional torts that were in no sense
inspired by any purpose to serve the employer. In Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d
167 (C.A.2 1968), for example, *795
the Second Circuit charged the Government with vicarious liability for the
depredation of a drunken sailor returning to his ship after a night's carouse,
who inexplicably opened valves that flooded a drydock, damaging both the
drydock and the ship. Judge Friendly acknowledged that the sailor's conduct was
not remotely motivated by a purpose to serve his employer, but relied on the
"deeply rooted sentiment that a business enterprise cannot justly disclaim
responsibility for accidents which may fairly be said to be characteristic of
its activities," and imposed vicarious liability on the ground that the
sailor's conduct "was not so 'unforeseeable' as to make it unfair to
charge the Government with responsibility." Id., at 171. Other examples of an expansive sense of
scope of employment are readily found, see, e.g., Leonbruno v. Champlain Silk Mills,
229 N.Y. 470, 128 N.E. 711 (1920) (opinion of Cardozo, J.)
(employer was liable under worker's compensation statute for eye injury
sustained when employee threw an apple at another; the accident arose "in
the course of employment" because such horseplay should be expected); Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 171 P.2d 5
(1946) (employer liable for actions of carpenter who attacked a co-
employee with a hammer). Courts, in fact, have treated scope of employment
generously enough to include sexual assaults. See, e.g., Primeaux v. United States, 102
F.3d 1458, 1462-1463 (C.A.8 1996) (federal police officer on
limited duty sexually assaulted stranded motorist); Mary M. v. Los Angeles, 54 Cal.3d 202, 216-221, 285
Cal.Rptr. 99, 107-111, 814 P.2d 1341, 1349-1352 (1991) (en banc) (police officer raped motorist after placing
her under arrest); Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 348-349
(Alaska 1990) (therapist had sexual relations with patient); Turner v. State, 494 So.2d 1292, 1296 (La.App.1986)
(National Guard recruiting officer committed sexual battery during sham
physical examinations); Lyon v. Carey, 533 F.2d 649, 655 (C.A.D.C.1976)
(furniture deliveryman raped recipient of furniture); Samuels v. Southern Baptist Hospital, 594 So.2d 571, 574
(La.App.1992) (nursing *796
assistant raped patient).
[FN2] The rationales for these decisions have varied, with some courts
echoing Bushey in explaining that the employee's acts were
foreseeable and that the employer should in fairness bear the resulting costs
of doing business, see, e.g., Mary M., supra, at 218, 285
Cal.Rptr., at 108, 814 P.2d, at 1350, and others finding that
the employee's sexual misconduct arose from or was in some way related to the
employee's essential duties. See, e.g., Samuels, supra, at 574
(tortious conduct was "reasonably incidental" to the performance of
the nursing assistant's duties in caring for a "helpless" patient in
a "locked environment").
FN2. It bears noting that many courts in non-Title VII cases have held sexual assaults to fall outside the scope of employment. See Note, "Scope of Employment" Redefined: Holding Employers Vicariously Liable
for Sexual Assaults Committed by their Employees, 76 Minn. L.Rev. 1513, 1521-1522, and nn. 33, 34 (1992) (collecting cases).
An assignment to reconcile the run of the Title VII cases with those just cited
would be a taxing one. Here it is enough to recognize that their disparate
results do not necessarily reflect wildly varying terms of the particular
employment contracts involved, but represent differing judgments about the
desirability of holding an employer liable for his subordinates' wayward
behavior. In the instances in which there is a genuine question about the
employer's responsibility for harmful conduct he did not in fact authorize, a
holding that the conduct falls within the scope of employment ultimately
expresses a conclusion not of fact but of law. As one eminent authority has
observed, the "highly indefinite phrase" is "devoid of meaning
in **2288 itself" and is
"obviously no more than a bare formula to cover the unordered and
unauthorized acts of the servant for which it is found to be expedient to
charge the master with liability, as well as to exclude other acts for which it
is not." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keaton
on Law of Torts 502 (5th ed.1984); see also Seavey, Speculations as to
"Respondeat Superior," in Studies in Agency 129, 155 *797 (1949) ("The liability of a
master to a third person for the torts of a servant has been widely extended by
aid of the elastic phrase 'scope of the employment' which may be used to
include all which the court wishes to put into it"). Older cases, for
example, treated smoking by an employee during working hours as an act outside
the scope of employment, but more recently courts have generally held smoking
on the job to fall within the scope. Prosser & Keeton, supra, at
504, and n. 23. It is not that employers formerly did not authorize smoking but
have now begun to do so, or that employees previously smoked for their own
purposes but now do so to serve the employer. We simply understand smoking
differently now and have revised the old judgments about what ought to be done
about it.
The proper analysis here, then, calls not for a mechanical application of
indefinite and malleable factors set forth in the Restatement, see, e.g.,
§§ 219, 228, 229, but rather an inquiry into the reasons that would
support a conclusion that harassing behavior ought to be held within the scope
of a supervisor's employment, and the reasons for the opposite view. The
Restatement itself points to such an approach, as in the commentary that the
"ultimate question" in determining the scope of employment is
"whether or not it is just that the loss resulting from the servant's acts
should be considered as one of the normal risks to be borne by the business in
which the servant is employed." Id., § 229, Comment a. See generally Taber v. Maine, 67 F.3d 1029, 1037 (C.A.2 1995)
("As the leading Torts treatise has put it, 'the integrating principle' of
respondeat superior is 'that the employer should be liable for those
faults that may be fairly regarded as risks of his business, whether they are
committed in furthering it or not' " (quoting 5 F. Harper, F. James, &
O. Gray, Law of Torts § 26.8, pp. 40-41 (2d ed.1986)).
In the case before us, a justification for holding the offensive behavior
within the scope of Terry's and Silverman's employment was well put in Judge
Barkett's dissent: "[A] *798
pervasively hostile work environment of sexual harassment is never (one would
hope) authorized, but the supervisor is clearly charged with maintaining a productive,
safe work environment. The supervisor directs and controls the conduct of the
employees, and the manner of doing so may inure to the employer's benefit or
detriment, including subjecting the employer to Title VII liability." 111 F.3d, at 1542 (opinion dissenting in part and concurring in
part). It is by now well recognized that hostile environment sexual harassment
by supervisors (and, for that matter, coemployees) is a persistent problem in
the workplace. See Lindemann & Kadue 4-5 (discussing studies showing
prevalence of sexual harassment); Ellerth, 123 F.3d, at 511 (Posner, C.J., concurring
and dissenting) ("[E]veryone knows by now that sexual harassment is a
common problem in the American workplace"). An employer can, in a general
sense, reasonably anticipate the possibility of such conduct occurring in its
workplace, and one might justify the assignment of the burden of the untoward
behavior to the employer as one of the costs of doing business, to be charged
to the enterprise rather than the victim. As noted, supra, at 2287-2288,
developments like this occur from time to time in the law of agency.
Two things counsel us to draw the contrary conclusion. First, there is no
reason to suppose that Congress wished courts to ignore the traditional
distinction between acts falling within the scope and acts amounting to what
the older law called frolics or detours from the course of employment. Such a
distinction can readily be applied to the spectrum of possible harassing
conduct by supervisors, as the following examples show. First, a supervisor
might discriminate racially in job assignments in order to placate the
prejudice pervasive in the labor force. Instances of this variety of the
heckler's veto **2289 would be
consciously intended to further the employer's interests by preserving peace in
the workplace. Next, supervisors might reprimand male employees for workplace
failings with banter, but respond to women's *799
shortcomings in harsh or vulgar terms. A third example might be the supervisor
who, as here, expresses his sexual interests in ways having no apparent object
whatever of serving an interest of the employer. If a line is to be drawn
between scope and frolic, it would lie between the first two examples and the
third, and it thus makes sense in terms of traditional agency law to analyze
the scope issue, in cases like the third example, just as most federal courts
addressing that issue have done, classifying the harassment as beyond the scope
of employment.
The second reason goes to an even broader unanimity of views among the holdings
of District Courts and Courts of Appeals thus far. Those courts have held not
only that the sort of harassment at issue here was outside the scope of
supervisors' authority, but, by uniformly judging employer liability for co-
worker harassment under a negligence standard, they have also implicitly treated
such harassment as outside the scope of common employees' duties as well. See
Blankenship v. Parke Care Centers, Inc., 123 F.3d 868, 872-873 (C.A.6 1997), cert. denied, 522 U.S. 1110, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998); Fleming v. Boeing Co., 120 F.3d 242, 246 (C.A.11 1997);
Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (C.A.2 1997);
Yamaguchi v. United States Dept. of Air Force, 109 F.3d
1475, 1483 (C.A.9 1997); Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213
(C.A.8 1996), cert. denied, 519 U.S. 1110, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997); McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 480
(C.A.7 1996); Andrade, 88 F.3d, at 261; Waymire v. Harris County, 86 F.3d 424, 428-429 (C.A.5
1996); Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777,
783 (C.A.10 1995); Andrews v. Philadelphia, 895 F.2d 1469, 1486 (C.A.3 1990);
cf. Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 438
(C.A.1 1997) (applying "knew or should have known" standard to claims
of environmental harassment by a supervisor); see also 29 CFR § 1604.11(d) (1997) (employer is liable for co-worker
harassment if it "knows or should have known of the conduct, unless it can
show that it took immediate and appropriatecorrective *800 action"); 3 L. Larson & A.
Larson, Employment Discrimination § 46.07[4][a], p. 46-101 (2d ed.1998) (courts
"uniformly" apply Equal Employment Opportunity Commission (EEOC)
rule; "[i]t is not a controversial area"). If, indeed, the cases did
not rest, at least implicitly, on the notion that such harassment falls outside
the scope of employment, their liability issues would have turned simply on the
application of the scope-of-employment rule. Cf. Hunter v. Allis-Chalmers, Corp., 797 F.2d 1417, 1422
(C.A.7 1986) (noting that employer will not usually be liable under respondeat
superior for employee's racial harassment because it "would be the
rare case where racial harassment ... could be thought by the author of the
harassment to help the employer's business").
It is quite unlikely that these cases would escape efforts to render them
obsolete if we were to hold that supervisors who engage in discriminatory
harassment are necessarily acting within the scope of their employment. The
rationale for placing harassment within the scope of supervisory authority
would be the fairness of requiring the employer to bear the burden of
foreseeable social behavior, and the same rationale would apply when the
behavior was that of coemployees. The employer generally benefits just as
obviously from the work of common employees as from the work of supervisors;
they simply have different jobs to do, all aimed at the success of the
enterprise. As between an innocent employer and an innocent employee, if we use
scope-of-employment reasoning to require the employer to bear the cost of an
actionably hostile workplace created by one class of employees (i.e.,
supervisors), it could appear just as appropriate to do the same when the
environment was created by another class (i.e., co-workers).
The answer to this argument might well be to point out that the scope of
supervisory employment may be treated separately by recognizing that
supervisors have special authority enhancing their capacity to harass, and that
the *801 employer can guard
against their misbehavior more easily because their **2290 numbers are by definition fewer than
the numbers of regular employees. But this answer happens to implicate an
entirely separate category of agency law (to be considered in the next
section), which imposes vicarious liability on employers for tortious acts
committed by use of particular authority conferred as an element of an employee's
agency relationship with the employer. Since the virtue of categorical clarity
is obvious, it is better to reject reliance on misuse of supervisory authority
(without more) as irrelevant to scope-of-employment analysis.
2
The Court of Appeals also rejected vicarious liability on
the part of the City insofar as it might rest on the concluding principle set
forth in § 219(2)(d) of the Restatement, that an employer "is not
subject to liability for the torts of his servants acting outside the scope of
their employment unless ... the servant purported to act or speak on behalf of
the principal and there was reliance on apparent authority, or he was aided in
accomplishing the tort by the existence of the agency relation." Faragher
points to several ways in which the agency relationship aided Terry and
Silverman in carrying out their harassment. She argues that in general
offending supervisors can abuse their authority to keep subordinates in their
presence while they make offensive statements, and that they implicitly
threaten to misuse their supervisory powers to deter any resistance or
complaint. Thus, she maintains that power conferred on Terry and Silverman by
the City enabled them to act for so long without provoking defiance or
complaint.
The City, however, contends that § 219(2)(d) has no application here. It argues that the
second qualification of the subsection, referring to a servant "aided in
accomplishing the tort by the existence of the agency relation," merely
"refines" the one preceding it, which holds the employer vicariously *802 liable for its servant's abuse of
apparent authority. Brief for Respondent 30-31, and n. 24. But this narrow
reading is untenable; it would render the second qualification of § 219(2)(d) almost entirely superfluous (and would seem to
ask us to shut our eyes to the potential effects of supervisory authority, even
when not explicitly invoked). The illustrations accompanying this subsection
make clear that it covers not only cases involving the abuse of apparent
authority, but also cases in which tortious conduct is made possible or
facilitated by the existence of the actual agency relationship. See Restatement
§ 219, Comment e (noting employer liability where
"the servant may be able to cause harm because of his position as agent,
as where a telegraph operator sends false messages purporting to come from
third persons" and where the manager who operates a store "for an
undisclosed principal is enabled to cheat the customers because of his
position"); id., § 247, Illustration 1 (noting a newspaper's
liability for a libelous editorial published by an editor acting for his own
purposes).
We therefore agree with Faragher that in implementing Title VII it makes sense
to hold an employer vicariously liable for some tortious conduct of a
supervisor made possible by abuse of his supervisory authority, and that the
aided-by-agency-relation principle embodied in § 219(2)(d) of the Restatement provides an appropriate
starting point for determining liability for the kind of harassment presented
here.
[FN3] Several courts, indeed, have noted what Faragher has argued, that
there is a sense in which a harassing supervisor is always assisted in his
misconduct by the supervisory relationship. See, e.g., *803 Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (C.A.7 1993); Taylor v. Metzger, 152 N.J. 490, 505, 706 A.2d 685, 692
(1998) (emphasizing that a supervisor's conduct may have a greater impact
than that of colleagues at the same level); cf. Torres, 116 F.3d, at 631. See also White v. Monsanto Co., 585 So.2d 1205, 1209-1210 (La.1991)
(a supervisor's harassment of a subordinate is more apt to rise to **2291 the level of intentional infliction
of emotional distress than comparable harassment by a coemployee); Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 740,
565 P.2d 1173, 1176 (1977) (same); Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 498-499,
and n. 2, 86 Cal.Rptr. 88, 90-92, and n. 2, 468 P.2d 216, 218-219, and n. 2
(1970) (same). The agency relationship affords contact with an employee
subjected to a supervisor's sexual harassment, and the victim may well be
reluctant to accept the risks of blowing the whistle on a superior. When a
person with supervisory authority discriminates in the terms and conditions of
subordinates' employment, his actions necessarily draw upon his superior
position over the people who report to him, or those under them, whereas an
employee generally cannot check a supervisor's abusive conduct the same way
that she might deal with abuse from a co-worker. When a fellow employee
harasses, the victim can walk away or tell the offender where to go, but it may
be difficult to offer such responses to a supervisor, whose "power to
supervise--[which may be] to hire and fire, and to set work schedules and pay
rates--does not disappear ... when he chooses to harass through insults and
offensive gestures rather than directly with threats of firing or promises of
promotion." Estrich, Sex at Work, 43 Stan. L.Rev. 813, 854 (1991). Recognition of
employer liability when discriminatory misuse of supervisory authority alters
the terms and conditions of a victim's employment is underscored by the fact
that the employer has a greater opportunity to guard against misconduct by
supervisors than by common workers; employers have greater opportunity and
incentive to screen them, train them, and monitor their performance.
FN3. We say "starting point" because our obligation here is not to make a pronouncement of agency law in general or to transplant § 219(2)(d) into Title VII. Rather, it is to adapt agency concepts to the practical objectives of Title VII. As we said in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986), "common-law principles may not be transferable in all their particulars to Title VII."
*804 In sum, there are good
reasons for vicarious liability for misuse of supervisory authority. That
rationale must, however, satisfy one more condition. We are not entitled to
recognize this theory under Title VII unless we can square it with Meritor's holding that an employer is not
"automatically" liable for harassment by a supervisor who creates the
requisite degree of discrimination,
[FN4] and there is obviously some tension between that holding and the
position that a supervisor's misconduct aided by supervisory authority subjects
the employer to liability vicariously; if the "aid" may be the
unspoken suggestion of retaliation by misuse of supervisory authority, the risk
of automatic liability is high. To counter it, we think there are two basic
alternatives, one being to require proof of some affirmative invocation of that
authority by the harassing supervisor, the other to recognize an affirmative
defense to liability in some circumstances, even when a supervisor has created
the actionable environment.
FN4. We are bound to honor Meritor on this point not merely because of the high value placed on stare decisis in statutory interpretation, supra, at 2286, but for a further reason as well. With the amendments enacted by the Civil Rights Act of 1991, Congress both expanded the monetary relief available under Title VII to include compensatory and punitive damages, see § 102, 105 Stat. 1072, 42 U.S.C. § 1981a, and modified the statutory grounds of several of our decisions, see § 101 et seq. The decision of Congress to leave Meritor intact is conspicuous. We thus have to assume that in expanding employers' potential liability under Title VII, Congress relied on our statements in Meritor about the limits of employer liability. To disregard those statements now (even if we were convinced of reasons for doing so) would be
not only to disregard stare decisis in statutory interpretation, but to substitute our revised judgment about the proper allocation of the costs of harassment for Congress's considered decision on the subject.
There is certainly some authority for requiring active or affirmative, as
distinct from passive or implicit, misuse of supervisory authority before
liability may be imputed. That is the way some courts have viewed the familiar
cases holding the employer liable for discriminatory employment *805 action with tangible consequences,
like firing and demotion. See supra, at 2284. And we have already noted
some examples of liability provided by the Restatement itself, which suggest
that an affirmative misuse of power might be required. See supra, at
2290 (telegraph operator sends false messages, a store manager cheats
customers, editor publishes libelous editorial).
But neat examples illustrating the line between the affirmative and merely
implicit uses of power are not easy to come by in considering management
behavior. Supervisors do not make speeches threatening sanctions whenever they
make requests in the **2292
legitimate exercise of managerial authority, and yet every subordinate employee
knows the sanctions exist; this is the reason that courts have consistently
held that acts of supervisors have greater power to alter the environment than
acts of coemployees generally, see supra, at 2290-2291. How far from the
course of ostensible supervisory behavior would a company officer have to step
before his orders would not reasonably be seen as actively using authority?
Judgment calls would often be close, the results would often seem disparate
even if not demonstrably contradictory, and the temptation to litigate would be
hard to resist. We think plaintiffs and defendants alike would be poorly served
by an active-use rule.
The other basic alternative to automatic liability would avoid this particular
temptation to litigate, but allow an employer to show as an affirmative defense
to liability that the employer had exercised reasonable care to avoid
harassment and to eliminate it when it might occur, and that the complaining
employee had failed to act with like reasonable care to take advantage of the
employer's safeguards and otherwise to prevent harm that could have been
avoided. This composite defense would, we think, implement the statute
sensibly, for reasons that are not hard to fathom.
Although Title VII seeks "to make
persons whole for injuries suffered on account of unlawful employment
discrimination," *806 Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct.
2362, 2372, 45 L.Ed.2d 280 (1975), its "primary objective," like
that of any statute meant to influence primary conduct, is not to provide
redress but to avoid harm. Id., at 417, 95 S.Ct., at 2371. As long ago as 1980,
the EEOC, charged with the enforcement of Title VII, 42 U.S.C. § 2000e-4, adopted regulations advising employers
to "take all steps necessary to prevent sexual harassment from occurring,
such as ... informing employees of their right to raise and how to raise the
issue of harassment." 29 CFR § 1604.11(f) (1997), and in 1990 the EEOC issued a
policy statement enjoining employers to establish a complaint procedure
"designed to encourage victims of harassment to come forward [without
requiring] a victim to complain first to the offending supervisor." EEOC
Policy Guidance on Sexual Harassment, 8 FEP Manual 405:6699 (Mar. 19, 1990)
(internal quotation marks omitted). It would therefore implement clear
statutory policy and complement the Government's Title VII enforcement efforts
to recognize the employer's affirmative obligation to prevent violations and
give credit here to employers who make reasonable efforts to discharge their
duty. Indeed, a theory of vicarious liability for misuse of supervisory power
would be at odds with the statutory policy if it failed to provide employers
with some such incentive.
The requirement to show that the employee has failed in a coordinate duty to
avoid or mitigate harm reflects an equally obvious policy imported from the
general theory of damages, that a victim has a duty "to use such means as
are reasonable under the circumstances to avoid or minimize the damages"
that result from violations of the statute. Ford Motor Co. v. EEOC, 458 U.S. 219, 231, n. 15, 102 S.Ct.
3057, 3065, n. 15, 73 L.Ed.2d 721 (1982) (quoting C. McCormick, Law of
Damages 127 (1935) (internal quotation marks omitted)). An employer may, for
example, have provided a proven, effective mechanism for reporting and
resolving complaints of sexual harassment, available to the employee without
undue risk or expense. If the plaintiff unreasonably *807 failed to avail herself of the
employer's preventive or remedial apparatus, she should not recover damages
that could have been avoided if she had done so. If the victim could have
avoided harm, no liability should be found against the employer who had taken
reasonable care, and if damages could reasonably have been mitigated no award
against a liable employer should reward a plaintiff for what her own efforts
could have avoided.
In order to accommodate the principle
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 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998),
also decided today. An employer is subject **2293
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 an unreasonable failure to use any complaint
procedure provided by the employer, a *808
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.
See Burlington, 524 U.S., at 762-763, 118 S.Ct., at 2269.
Applying these rules here, we believe
that the judgment of the Court of Appeals must be reversed. The District Court
found that the degree of hostility in the work environment rose to the
actionable level and was attributable to Silverman and Terry. It is undisputed
that these supervisors "were granted virtually unchecked authority"
over their subordinates, "directly controll[ing] and supervis[ing] all
aspects of [Faragher's] day-to-day activities." 111 F.3d, at 1544 (Barkett, J., dissenting in part and
concurring in part). It is also clear that Faragher and her colleagues were
"completely isolated from the City's higher management." Ibid. The City did not seek review of these findings.
While the City would have an
opportunity to raise an affirmative defense if there were any serious prospect
of its presenting one, it appears from the record that any such avenue is
closed. The District Court found that the City had entirely failed to disseminate
its policy against sexual harassment among the beach employees and that its
officials made no attempt to keep track of the conduct of supervisors like
Terry and Silverman. The record also makes clear that the City's policy did not
include any assurance that the harassing supervisors could be bypassed in
registering complaints. App. 274. Under such circumstances, we hold as a matter
of law that the City could not be found to have exercised reasonable care to
prevent the supervisors' harassing conduct. Unlike the employer of a small work
force, who might expect that sufficient care to prevent tortious behavior could
be exercised informally, those responsible for city operations could not
reasonably have thought that precautions against hostile environments in any
one of many departments in far- *809
flung locations could be effective without communicating some formal policy
against harassment, with a sensible complaint procedure.
We have drawn this conclusion without overlooking two possible grounds upon which
the City might argue for the opportunity to litigate further. There is, first,
the Court of Appeals's indulgent gloss on the relevant evidence: "There is
some evidence that the City did not effectively disseminate among Marine Safety
employees its sexual harassment policy." 111 F.3d, at 1539, n. 11. But, in contrast to the Court of
Appeals's characterization, the District Court made an explicit finding of a
"complete failure on the part of the City to disseminate said policy among
Marine Safety Section employees." 864 F.Supp., at 1560. The evidence supports the District Court's
finding and there is no contrary claim before us.
The second possible ground for pursuing a defense was asserted by the City in
its argument addressing the possibility of negligence liability in this case.
It said that it should not be held liable for failing to promulgate an
antiharassment policy, because there was no apparent duty to do so in the 1985-
1990 period. The City purports to rest this argument on the position of the
EEOC during the period mentioned, but it turns out that the record on this
point is quite against the **2294
City's position. Although the EEOC issued regulations dealing with promulgating
a statement of policy and providing a complaint mechanism in 1990, see supra,
at 2292, ever since 1980 its regulations have called for steps to prevent
violations, such as informing employees of their rights and the means to assert
them, ibid. The City, after all, adopted an antiharassment policy in
1986.
The City points to nothing that might justify a conclusion by the District
Court on remand that the City had exercised reasonable care. Nor is there any
reason to remand for consideration of Faragher's efforts to mitigate her own
damages, since the award to her was solely nominal.
*810 3
The Court of Appeals also rejected the possibility that it could hold the City liable for the reason that it knew of the harassment vicariously through the knowledge of its supervisors. We have no occasion to consider whether this was error, however. We are satisfied that liability on the ground of vicarious knowledge could not be determined without further factfinding on remand, whereas the reversal necessary on the theory of supervisory harassment renders any remand for consideration of imputed knowledge entirely unjustifiable (as would be any consideration of negligence as an alternative to a theory of vicarious liability here).
III
The judgment of the Court of Appeals for the Eleventh
Circuit is reversed, and the case is remanded for reinstatement of the judgment
of the District Court.
It is so ordered.
Justice THOMAS, with whom Justice SCALIA joins, dissenting.
For the reasons given in my dissenting opinion in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118
S.Ct. 2257, 141 L.Ed.2d 633 (1998), absent an adverse employment
consequence, an employer cannot be held vicariously liable if a supervisor
creates a hostile work environment. Petitioner suffered no adverse employment
consequence; thus the Court of Appeals was correct to hold that the City of
Boca Raton (City) is not vicariously liable for the conduct of Chief Terry and
Lieutenant Silverman. Because the Court reverses this judgment, I dissent.
As for petitioner's negligence claim, the District Court made no finding as to
the City's negligence, and the Court of Appeals did not directly consider the
issue. I would therefore remand the case to the District Court for further
proceedings on this question alone. I disagree with the Court's *811 conclusion that merely because the
City did not disseminate its sexual harassment policy, it should be liable as a
matter of law. See ante, at 2293.
[FN1] The City should be allowed to show either that: (1) there was a
reasonably available avenue through which petitioner could have complained to a
City official who supervised both Chief Terry and Lieutenant Silverman, see
Brief for United States and EEOC as Amici Curiae in Meritor Savings Bank, FSB v. Vinson, O.T.1985, No. 84-1979, p. 26,
[FN2] or (2) it would not have learned of the harassment even if the policy
had been distributed. [FN3]
Petitioner, as the plaintiff, would of course bear the burden of proving the
City's negligence.
FN1. The harassment alleged in this case occurred intermittently over a 5-year period between 1985 and 1990; the District Court's factual findings do not indicate when in 1990 it ceased. It was only in March 1990 that the Equal Employment Opportunity Commission (EEOC) issued a "policy statement" "enjoining" employers to establish complaint procedures for sexual harassment. See ante, at 2292. The 1980 Guideline on which the Court relies--because the EEOC has no substantive rulemaking authority under Title VII, the Court is inaccurate to refer to it as a "regulatio [n]," see ante, at 2294--was wholly precatory and as such cannot establish negligence per se. See 29 CFR § 1604.11(f) (1997) ( "An employer should take all steps necessary to prevent sexual harassment from occurring ... ").
FN2. The City's Employment Handbook stated that employees with "complaints or grievances" could speak to the City's Personnel and Labor
Relations Director about problems at work. See App. 280. The District Court found that the City's Personnel Director, Richard Bender, moved quickly to investigate the harassment charges against Terry and Silverman once they were brought to his attention. See App. to Pet. for Cert. 80a.
FN3. Even after petitioner read the City's sexual harassment policy in 1990, see App. 188, she did not file a charge with City officials. Instead, she filed suit against the City in 1992.