Case Study:
Burlington Industries, Inc. v. Ellerth 524 U.S.742 (1998)
Employee claimed she was constructively discharged because of unwanted, persistent sexual advances by her supervisor. While she lost no tangible job benefit because of his actions toward her, and even had a promotion during her employment, the Court held she could still bring a cause of action based on hostile environment sexual harassment. Though employer had an anti–sexual harassment policy, employee did not report the harassment until a few weeks after she left. The Court said that employee could still bring the sexual harassment action, but in cases such as this where there is no loss of tangible job benefits, the employer could use as an affirmative defense the existence of procedures for reporting and handling sexual harassment complaints, and an employee’s failure to use them.
Kennedy,j
The employee is Kimberly Ellerth. 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. 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 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. 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.” In March 1994, when Ellerth was being considered for a promotion, Slowik expressed reservations during the promotion interview because she was not “loose enough.” The comment was followed by his reaching over and rubbing her knee. 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.” 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.” Ellerth told Slowik she had to go and ended the call. 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.” A short time later, Ellerth’s immediate supervisor cautioned her about returning telephone calls to customers in a prompt fashion. In response, Ellerth quit. She faxed a letter giving reasons unrelated to the alleged sexual harassment we have described. About three weeks later, however, she sent a letter explaining she quit because of Slowik’s behavior. 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. In fact, she chose not to inform her immediate supervisor (not Slowik) because “it would be his duty as my supervisor to report any incidents of sexual harassment.” On one occasion, she told Slowik a comment he made was inappropriate. 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. 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. The supervisor often must obtain the imprimatur of the enterprise and use its internal processes. 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 against a subordinate. In that instance, it would be implausible to interpret agency principles to allow an employer to escape liability.
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. 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 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 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. 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. AFFIRMED.
Q1. What do you think of the Court not allowing the affirmative defense if there was a tangible employment action such as a discharge, demotion, or undesirable reassignment?
Q2. Does it make sense to you to allow an employee to bring a sexual harassment cause of action if the employee suffered no adverse tangible employment action?
Q3. Do you understand why the Court would allow this affirmative defense in cases where there is no loss of tangible job benefit, but not in cases where there is such a loss?
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format.