Academic journal article Defense Counsel Journal

Learning the New Rules of Sexual Harassment: Faragher, Ellerth and Beyond

Academic journal article Defense Counsel Journal

Learning the New Rules of Sexual Harassment: Faragher, Ellerth and Beyond

Article excerpt

Employers may be hard put to comply with all the standards raised, but employees also may find it difficult to overcome some barriers

Last year in two cases decided the same day--Faragher v. City of Boca Raton(1) and Burlington Industries Inc. v. Ellerth(2)--the U.S. Supreme Court created a new set of rules to govern employer liability for sexual harassment by supervisors. For the first time, the Court held that an employer can be vicariously (that is, strictly) liable for the actionable harassment by a supervisor that involves a tangible employment action.

Vicarious liability can occur even though the employer did not know about the supervisor's harassment and took prompt remedial action to end the harassment after learning of it.(3) However, if the supervisor's harassment did not result in the employee suffering a "tangible employment action," an employer can avoid liability if it can establish an affirmative defense that (1) it took reasonable care to prevent and correct any sexual harassment, and (2) the employee unreasonably failed to take advantage of the employer's preventive or corrective measures or avoid harm otherwise.

In establishing these new rules, the Court applied agency principles from Section 219 of the Restatement (Second) of Agency, under which, when a supervisor is "aided in accomplishing the [harassment] by the agency relationship," an employer can be automatically liable for the supervisor's harassment. The Court applied this "aided" form of vicarious liability, in part, because, it stated in Faragher, supervisors' "authority enhance[s] their capacity to harass and ... the employer can guard against their misbehavior more easily because their numbers are by definition fewer than the numbers of regular employees."

Employers now face the prospect of strict liability when the following elements are present: (1) "actionable harassment" (2) involving a "tangible employment action" (3) "at the hands of" (4) a "supervisor." Now employers must learn the Supreme Court's new rules on sexual harassment or face the prospect of strict liability.


Under the new standards, the first question will be whether the conduct involved "actionable harassment."

A. Quid Pro Quo and Hostile Work Environment

Faragher and Ellerth change the previously articulated standards for determining when actionable harassment exists. As subsequent cases have recognized, the Court "eliminated the substantive distinction between the judicially created `quid pro quo' and `hostile work environment' labels for sexual harassment claims under Title VII."(4) Specifically, Justice Kennedy stated for the Court in Ellerth, "The terms quid pro quo and hostile environment are helpful, perhaps, in making a rough demarcation between cases in which threats [to retaliate based on the victim's response to sexual advances] are carried out and those where they are not or are absent altogether, but beyond this are of limited utility."(5)

Under, the Supreme Court's new rules, in a quid pro quo case, "when a plaintiff proves that a tangible employment decision resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII." However, if the claim involves only unfulfilled threats, "it should be categorized as a hostile work environment claim."

In Ellerth, the plaintiff worked in a two-person office in Chicago and was supervised by her office colleague, who in turn reported to a mid-level manager in New York. The manager made sexual advances to Ellerth and when she did not respond favorably, he warned her that "I could make your life very hard or very easy at Burlington." She tried to make out a quid pro quo case by asserting that the mid-level manager made threats in connection with his sexual advances, but the Court held that her claim was not a quid pro quo, but a hostile work environment, claim. …

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