No. 97-282

The Question Before the Court

Is an employer liable for hostile work environment sexual harassment committed by supervisory employees who use their supervisory status to effect the harassment? Under what circumstances may a fact-finder infer notice to an employer of hostile-environment sexual harassment?

Background

Facts:

Beth Ann Faragher worked as an ocean lifeguard for the City of Boca Raton, Florida. Bill Terry, Chief of the Marine Safety Section, was authorized to supervise all aspects of the lifeguard’s work assignments. David Silverman, a Marine Safety lieutenant and then captain, supervised the lifeguards’ daily duties. Located at a remote worksite far removed from the rest of city government, Terry and Silverman, the highest ranking supervisors in the Marine Safety Section, were granted virtually unchecked authority over the work environment and the supervision of their subordinate employees.

Throughout their employment, Terry subjected Faragher and another lifeguard, Nancy Ewanchew, to uninvited and offensive touching. Silverman made various offensive comments and gestures to both Faragher and Ewanchew. Both lifeguards complained to a supervisor, Marine Safety Lieutenant and Training Captain Robert Gordon. Although Gordon had received complaints from other lifeguards about Silverman’s language and conduct, he failed to report the complaints to his supervisor, Terry, or to another City official.

Ewanchew and Faragher resigned from their lifeguard positions with the City in 1989 and 1990 respectively. In April of 1990, Ewanchew wrote a letter to the City’s Director of Personnel complaining that while employed with the City, she and other female lifeguards had been sexually harassed by Terry and Silverman. The City, after investigating Ewanchew’s complaint, concluded that Terry and Silverman engaged in inappropriate conduct. Both were reprimanded and disciplined.

Lower Courts:

In 1992, Faragher sued the City of Boca Raton for sexual harassment under Title VII. The U.S. District Court for the Southern District of Florida entered judgment for Faragher on her Title VII claim against the City. The court held that Faragher was subjected to sufficiently severe and pervasive offensive conduct to create a hostile work environment. The court also held that, under agency principles, the City was directly liable for Terry’s and Silverman’s conduct based on their supervisory authority and the overall work structure. Finally, the court found the City to be indirectly liable for Terry’s and Silverman’s offensive conduct because the severity and pervasiveness of the conduct supported an inference of knowledge or constructive knowledge on the part of the City regarding Terry’s and Silverman’s sexual harassment of Faragher.

On appeal, a panel of the U.S. Court of Appeals for the Eleventh Circuit reversed the district court’s judgment for Faragher on her Title VII claim against the City. That panel opinion was vacated and rehearing en banc was granted.

The Eleventh Circuit en banc opinion focused on two issues: (1) whether the City may be liable under Title VII for Terry’s and Silverman’s hostile environment sexual harassment of Faragher, regardless of its actual or constructive knowledge of that harassment; and (2) whether the City knew or should have known of Terry’s and Silverman’s hostile environment harassment of Faragher. The court found that Terry and Silverman neither acted within the scope of their employment in perpetrating the harassment against Faragher, nor were they aided in accomplishing the harassment by the existence of their agency relationship with the City. Additionally, the court failed to find a factual basis to conclude that the harassment was so pervasive as to charge the City with constructive knowledge. The court concluded, therefore, that the City was neither indirectly nor directly liable for the harassing conduct.

 The Importance of this Case

 The existence of widespread sexual harassment greatly restricts women’s ability to participate as equals in the workplace. In fact, sexual harassment constitutes precisely the kind of barrier to equal employment that Title VII was created to prevent. Sexual harassment is particularly invidious because it negatively impacts on work performance and opportunities for advancement in the same way as sex discrimination in hiring, promotion and work conditions. Because a supervisor’s sexual harassment of subordinate employees is invariably effectuated by the supervisor’s control over the victim, sexual harassment is most likely to occur when there is an imbalance of power in the workplace.

According to a study of Fortune 500 companies, almost two thirds of sexual harassment complaints are brought against a woman’s immediate supervisor or another person with greater power. Other studies show that between forty to ninety percent of women in the United States workforce have been the victims of some form of sexual harassment on the job. As Ninth Circuit Judge Alex Kozinski wrote: “It is a sobering revelation that every woman -every woman-who has spent substantial time in the workforce in the last two decades can tell at least one story about being the object of sexual harassment.”

With the enactment of Title VII, Congress indicated that the employer is best situated to guard against the occurrence of discrimination. To ensure that Title VII is effective in protecting women against sexual harassment in employment, employers should be required to take meaningful action to monitor and prevent sexual harassment in the workplace. If employers are held liable for sexual harassment where a supervisor invokes the employer’s authority, implicitly or explicitly, to sexually harass subordinate employees, employers will have a real incentive to implement the necessary policies.

Equal Rights Advocates’ Position

Equal Rights Advocates and other women’s organizations advocate a standard of employer liability that is supported by agency principles and best comports with the realities of the workplace. The Supreme Court has recognized that sexual harassment is a form of sexual discrimination that greatly inhibits a woman’s ability to achieve equality in the workplace. Agency principles and the policies underlying Title VII require the adoption of a legal standard that holds employers liable for hostile work environment sexual harassment where (1) a supervisor explicitly or implicitly invokes the employer’s authority to sexually harass subordinate employees; or (2) even if the harasser did not act as the employer’s agent, the employer knew or should have known of the harassment and failed to take appropriate action. We argue that constructive knowledge should be attributed to the employer if it failed to develop and dissem-inate a policy against sexual harassment or failed to provide all employees with an effective method of making complaints of sexual harassment.

The Supreme Court’s Decision

In June 1998, 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. The Court described a “tangible employment action” as including discharge, demotion or undesirable reassignment. Here, the Court held as a matter of law that the City of Boca Raton had not met the elements of the affirmative defense.

As a result of this decision, women who experience sexual harassment at work must find out whether their employer has a sexual harassment policy or other grievance procedure in place. If the employee does not avail herself of the procedures and their protections, she must be prepared to show evidence that her decision was reasonable. Otherwise, she will be precluded from recovering on a claim of sexual harassment.