Faragher v. City of Boca Raton

Title VII reaches more than discrete economic decisions such as hiring, firing, and promotion. Sexual harassment violates the statute when it is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.

A hostile environment must be both objectively and subjectively offensive. Courts assess all the circumstances, including the frequency and severity of the conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes with work. The standard is demanding enough to exclude ordinary workplace slights, isolated teasing, and mere offensive remarks.

Here, the supervisors’ repeated unwanted touching, sexually explicit conduct and comments, and degrading references to women over Faragher’s years of employment supported the District Court’s conclusion that the workplace was actionably hostile. The City did not seek review of that finding.

The Court rejected a mechanical use of the common-law phrase “scope of employment,” recognizing that the phrase ultimately reflects a legal judgment about when it is fair to place a loss on the enterprise. But Title VII and traditional agency law preserve a meaningful distinction between conduct undertaken to serve the employer and an employee’s personal frolic.

A supervisor who uses managerial authority to make discriminatory job assignments or who administers workplace discipline in a discriminatory manner may be acting within the scope of employment. By contrast, the sexual comments and touching at issue here had no apparent purpose of serving the City and fit the traditional understanding of conduct outside that scope.

Treating all supervisor harassment as within the scope of employment would also undermine the established negligence-based approach to harassment by coworkers. The Court therefore located the key basis for supervisory-harassment liability not in scope of employment, but in a supervisor’s misuse of authority conferred by the employer.

Title VII’s definition of “employer” includes an employer’s agents, and Meritor Savings Bank directs courts to use agency principles as guidance while adapting them to Title VII’s purposes. A supervisor’s authority gives harassment a particular force: the supervisor can control a subordinate’s work life, compel continued contact, and implicitly deter resistance or reporting even without an express threat of firing or demotion.

The Court relied on the Restatement principle covering torts made possible or facilitated by an agency relationship. A supervisor who creates a hostile environment is aided by the agency relationship because supervisory power gives the harasser access to subordinates and makes the harassment harder to resist or report. Employers are also especially able to screen, train, monitor, and regulate supervisors.

Automatic liability in every supervisory-harassment case, however, would conflict with Meritor. The Court therefore adopted an affirmative defense that balances vicarious liability for misuse of supervisory authority with Title VII’s central goal of preventing harassment before it causes harm.

When no tangible employment action occurs, the employer must prove both that it exercised reasonable care to prevent and promptly correct sexually harassing behavior and that the employee unreasonably failed to use preventive or corrective opportunities or otherwise avoid avoidable harm. A suitable anti-harassment policy and complaint procedure are not invariably required, but are highly relevant to the employer’s burden; an employee’s unreasonable failure to use a provided complaint mechanism will normally satisfy the second element.

No affirmative defense is available when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or an undesirable reassignment. In that circumstance, the supervisor has used delegated authority to impose an official change in the employee’s employment status.

Terry and Silverman had virtually unchecked day-to-day authority over Faragher and the other lifeguards, who were isolated from higher City officials. The City failed to distribute its written anti-harassment policy to the Marine Safety Section, leaving supervisors and many lifeguards unaware of it.

The City’s policy also did not assure employees that they could bypass the offending supervisor when making a complaint. Nor did City officials make efforts to monitor the conduct of supervisors in this remote unit. For a city operating multiple departments at dispersed locations, informal precautions were not a reasonable substitute for communicating a formal policy and practical reporting procedure.

Because the City could not establish the first element of the affirmative defense, further proceedings on that defense were unnecessary. The Court reversed the Eleventh Circuit and remanded for reinstatement of the District Court’s judgment for Faragher.