Case Study:
Faragher v. City of Boca Raton 524 U.S. 775 (1998)
A former city lifeguard sued the city under Title VII for sexual harassment based on the conduct of her supervisors. The Supreme Court held that an employer is subject to vicarious liability under Title VII for actionable discrimination caused by a supervisor, but the employer may raise an affirmative defense that looks to the reasonableness of the employer’s conduct in seeking to prevent and correct harassing conduct and to the reasonableness of employee’s conduct in seeking to avoid harm. The Court held that the employer was vicariously liable here because it failed to exercise reasonable care to prevent harassing behavior.
Souter, J.
This case calls for identification of the circumstances under which an employer may be held liable under Title VII of the Civil Rights Act 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. 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, and Florida law. The complaint alleged that Terry and Silverman were agents of the City, and that their conduct created a “sexually hostile atmosphere” that amounted to discrimination in the “terms, conditions, and privileges” of her employment 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. 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. Silverman and Gordon were captains and responsible for making the lifeguards’ daily assignments, and for supervising their work and fitness training. The lifeguards and supervisors were stationed at the city beach. The lifeguards had no significant contact with higher city officials like the Recreation Superintendent. In February 1986, the City adopted a sexual harassment policy, which it stated in a memorandum from the City Manager addressed to all employees. In May 1990, the City revised the policy and reissued a statement of it. 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, Gordon, and many lifeguards were unaware of it. Faragher did not complain to higher management about Terry or Silverman. 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. 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. 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 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. 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.” 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] 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.” It is by now well recognized that hostile environment sexual harassment by supervisors (and, for that matter, co-employees) is a persistent problem in the 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, developments like this occur from time to time in the law of agency.
We 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. 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.” 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. 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, also decided today. 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 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 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. Applying these rules here, 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.” It is also clear that Faragher and her colleagues were “completely isolated from the City’s higher management.” 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 City entirely failed to disseminate its policy against sexual harassment among the beach employees and its officials made no attempt to keep track of the conduct of supervisors like Terry and Silverman. The City’s policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints. 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 workforce, 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-flung locations could be effective without communicating some formal policy against harassment, with a sensible complaint procedure. REVERSED and REMANDED
Q1. How could the city have avoided this outcome? Explain.
Q2. Do you think that it would have made sense for the city to consider the particulars of the circumstances here, such as that these were lifeguards, in a remote location, who by the nature of the job would be dressed in fairly little clothing, and who, because of the environment (the beach and recreational facilities) might need a different approach to sexual harassment than, say, office employees? Explain.
Q3. What do you think of the Court’s affirmative defense given to employers and employees? What are the pros and cons?
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format.