No. 97-569

The Question Before the Court

Should an employer be liable for a supervisor’s sexual harassment of an employee if the employee did not acquiesce to her supervisor’s threats and suffered no adverse employment consequences as a result?

Background

Facts:

Kimberly Ellerth worked in Burlington’s Chicago office from March 1993 through May 1994, first as a merchandising assistant and later as a sales representative. Theodore Slowik was a New York based Vice-President of sales and marketing, supervising Ellerth’s immediate supervisors. Slowik had ultimate decision-making authority over Ellerth’s hire and subsequent promotion. Ellerth spoke with Slowik once per week and saw him when he traveled to her Chicago office twice per month and when she traveled to business related conferences in New York and elsewhere. Ellerth was required to get Slowik’s approval of special sales to her customers.

Soon after Ellerth began working for Burlington, Slowik began to subject Ellerth to harassing acts and comments, coupled with threats that her refusal to submit would result in retaliation. For example, in the summer of 1993, Slowik made a series of comments about Ellerth’s legs and breasts, stating “you know, Kim, I could make your life very hard or very easy at Burlington.” On another occasion, Slowik demanded that Ellerth perform what she understood to be fellatio, stating “On your knees again, Kim.”

On a third occasion, when Ellerth was being considered for a promotion, Slowik informed her that he had hesitations about promoting her because she was “not loose enough.” Slowik also refused to answer Ellerth’s work-related questions over the phone unless she told him what she was wearing.

Ellerth did not submit to Slowik’s solicitations. Nonetheless, he continued to subject her to unwanted touching of her body; numerous offensive jokes; unsolicited comments about her body, particularly her breasts, legs and buttocks, to others in her presence; and unsolicited offensive comments about other women’s bodies.

Ellerth resigned soon after Slowik refused to authorize a special project for one of Ellerth’s customers, asking, “are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier?”

Three weeks after resigning, Ellerth informed Slowik’s supervisors at Burlington that she had resigned due to Slowik’s harassment, which she found “unbearable.” She testified that she did not complain about Slowik’s harassment while still employed by Burlington because she feared that to do so would put her job in jeopardy.

Lower Courts:

Ellerth filed a Title VII action against Burlington in the United States District Court for the Northern District of Illinois, Eastern Division. The District Court entered judgment for Burlington, holding that Burlington was not liable for the sexual harassment under a hostile work environment theory and that Ellerth was not constructively discharged. The District Court stated that it could not reach Ellerth’s quid pro quo claim because she had not specifically alleged it in her complaint.

Ellerth appealed. A three-judge panel of the United States Court of Appeal for the Seventh Circuit reversed the District Court, holding that there was no requirement that complainants plead particular sub-theories of sexual harassment when making a charge of sexual harassment.

The Seventh Circuit, en banc, affirmed, finding Burlington liable for quid pro quo sexual harassment. It held that employers may be held strictly liable under Title VII even if the allegedly harassed employee neither submitted to a supervisor’s sexual advances nor suffered any adverse employment consequences as a result of refusing these advances. “An employee who does not submit [to the quid pro quo demand] may well undergo anxiety, distress, and loss of productivity regardless of whether the threat is carried out.” The United States Supreme Court granted certiorari.

The Importance of this Case

This case raises important issues regarding an employer’s liability for sexual harassment by a supervisor. Most harassed employees do not complain at all. Although almost two-thirds of harassment complaints are brought against either a woman’s immediate supervisor or another person with greater power, only ten to fifteen percent of women either respond assertively to or report their harasser. Imposing liability on employers would appropriately shift the risk and burdens associated with sexual harassment from the employee to the employer. This would encourage employers (who are already in the best position to prevent the occurrence of harassment) to create and disseminate policies and procedures against sexual harassment, to institute trainings, and to create grievance procedures. Effective policies and procedures will decrease the incidence of sexual harassment, enabling women to achieve their full potential in the workplace.

Equal Rights Advocates’ Position

On behalf of several women’s organizations, Equal Rights Advocates authored an amicus brief in this case. We argued that when a plaintiff employee makes a claim of sexual harassment, an employer should be held liable for the acts of its supervisor regardless of whether the employee acquiesced to the threats or suffered adverse employment consequences. Harassment occurs regardless of whether the plaintiff actually submits to the harasser. Even if a plaintiff does not comply, threats by a supervisor impact the terms and conditions of employment.

A plaintiff should not be required to prove economic injury to state a claim of quid pro quo harassment, i.e., the conditioning of job benefits upon a victim’s acquiescence. A plaintiff’s claim should be sufficient if the plaintiff can demonstrate that economic injury is threatened, that economic injury was avoided by the plaintiff’s acquiescence to sexual overtures, or that non-monetary terms or conditions of employment (such as hours or work assignments) were threatened or actually affected by the quid pro quo harassment. In many instances an employee may suffer harm even if she suffers no adverse employment or economic consequences. She may suffer from stress, emotional distress and loss of productivity.

ERA also argued that an employer’s liability should not hinge on the plaintiff’s characterization of the sexual harassment or on the often blurred distinction between quid pro quo and hostile work environment sexual harassment. Rather, following agency principles, liability should be assessed against the employer whenever a supervisor harasses an employee. Under both quid pro quo and hostile work environment theories of sexual harassment, the harassment generally derives from the supervisor’s abuse of authority. It is the authority vested in the supervisor by the employer that enables the supervisor to commit the wrong.

The Supreme Court’s Decision

In June 1998, the Supreme Court held that 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 that the employer is negligent or otherwise at fault for the supervisor’s actions. However, unfulfilled threats must meet the “severe or pervasive” test for sexual harassment. In this case, the Court concluded that the plaintiff employee had experienced three unfulfilled threats, amongst other abusive behaviors, which met the “severe or pervasive” test. The Court stated that it expressed no opinion as to whether a single unfulfilled threat is sufficient to constitute discrimination in the terms or conditions of employment. The decision collapsed the distinction between quid pro quo and hostile environment for the purposes of establishing employer liability. The Court also re-affirmed its holding relating to employer liability in Faragher. The Supreme Court held that an employer is liable to a sexual harassment plaintiff for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action results from the harassment, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The affirmative defense consists of two elements: (a) the employer must have exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee must have unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.