524 U.S. 742 (1998)
Kimberly Ellerth worked as a salesperson for Burlington Industries in its Chicago office from March 1993 until May 1994.1
During this period her supervisor Ted Slowik, a midlevel vice president based in New York, made repeated boorish and offensive remarks and gestures toward her.2
In the summer of 1993, while on a business trip, Slowik invited Ellerth to a hotel lounge and, after she gave no encouragement to his remarks about her breasts, told her he could make her life very hard or very easy at Burlington.3
In March 1994, when Ellerth was being considered for a promotion, Slowik expressed reservations during the promotion interview because she was not "loose enough."4 The comment was followed by his reaching over and rubbing her knee.5 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."6
In May 1994, Ellerth called Slowik asking permission to insert a customer's logo into a fabric sample.7 Slowik responded, "I don't have time for you right now, Kim . . .— unless you want to tell me what you're wearing."8 A day or two later, Ellerth called Slowik to ask permission again.9 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."10
A short time later, Ellerth's immediate supervisor cautioned her about returning telephone calls to customers in a prompt fashion.11 In response, Ellerth quit.12 She faxed a letter giving reasons unrelated to the alleged sexual harassment.13 About three weeks later, however, she sent a letter explaining she quit because of Slowik's behavior.14
Ellerth did not inform anyone in authority about Slowik's conduct despite knowing Burlington had a policy against sexual harassment.15 In October 1994, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), Ellerth filed suit in the United States District Court for the Northern District of Illinois, alleging Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII.16 The District Court granted summary judgment to Burlington.17
The Court of Appeals en banc reversed in a decision which produced eight separate opinions and no consensus for a controlling rationale.18 The Supreme Court granted certiorari to assist in defining the standards of employer liability.19
Whether 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 the employer is negligent or otherwise at fault for the supervisor's actions?20
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.21 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.22 The defense comprises two necessary elements.23 First, the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior.24 Second, the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.25 No affirmative defense is available when the supervisor's harassment culminates in a tangible employment action.26
Yes. The established facts show that Ellerth refused Slowik's unwelcome advances during the hotel lounge conversation in summer 1993, the March 1994 promotion interview, and the May 1994 telephone calls.27 Yet she received the promotion and suffered no denial of tangible job benefits before quitting.28 Because the threats remained unfulfilled and no tangible employment action occurred, Burlington faces vicarious liability for the hostile environment Slowik created.29 Burlington may nevertheless assert the affirmative defense on remand.30
The facts establish that Burlington maintained a policy against sexual harassment known to Ellerth, but she never reported Slowik's conduct to anyone in authority and instead quit without using internal complaint procedures, facts that may satisfy the second element of the defense if her failure to report was unreasonable.31
Ellerth may recover against Burlington under a theory of vicarious liability, subject to Burlington's opportunity to prove the affirmative defense.32
Related opinions on this issue
Justice Ginsburg concurred in the judgment and expressly agreed with the Court's ruling that the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability.33 She subscribed to the Court's statement of the rule governing employer liability.34
That rule is substantively identical to the rule the Court adopts in the companion case Faragher v. Boca Raton.35
Joined by Justice Scalia
Justice Thomas dissented from the imposition of vicarious liability.36 He argued that the majority manufactured a rule that employers are vicariously liable if supervisors create a sexually hostile work environment, subject to an affirmative defense that the Court barely attempts to define.37 This rule applies even if the employer has a policy against sexual harassment, the employee knows about that policy, and the employee never informs anyone in a position of authority about the supervisor's conduct.38
He contended that employer liability under Title VII should be judged by a uniform negligence standard in both sexual and racial hostile environment cases.39 He would have held Burlington not liable under a negligence standard because the company maintained a policy and Ellerth never reported the harassment.40
Whether the labels quid pro quo and hostile work environment control the determination of employer liability under Title VII for supervisor harassment?41
The terms quid pro quo and hostile work environment are helpful in making a rough demarcation between cases in which threats are carried out and those where they are not, but beyond this are of limited utility.42 When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, the employment decision itself constitutes a change in the terms and conditions of employment actionable under Title VII.43 For purposes of liability, however, the factors discussed in the opinion, and not the categories quid pro quo and hostile work environment, will be controlling on the issue of vicarious liability.44
No. Although the established facts involve unfulfilled threats that the district court characterized as having a quid pro quo component, the Supreme Court held that the labels do not control the liability determination.45 Ellerth's claim is properly categorized as a hostile work environment claim because no tangible employment action resulted from her refusals.46 The vicarious liability analysis turns on whether a tangible action occurred and the availability of the affirmative defense rather than on the label attached to the claim.47
The labels quid pro quo and hostile work environment do not control the determination of employer liability under Title VII.48
Related opinions on this issue
Justice Ginsburg concurred in the judgment and expressly agreed with the Court's ruling that the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability. She subscribed to the Court's statement of the rule governing employer liability.
That rule is substantively identical to the rule the Court adopts in the companion case Faragher v. Boca Raton.
Whether an employer is subject to vicarious liability for a supervisor's creation of a hostile work environment when no tangible employment action is taken?49
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. First, the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Second, the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. No affirmative defense is available when the supervisor's harassment culminates in a tangible employment action.
Yes. The established facts demonstrate that Slowik, a midlevel manager with authority over Ellerth, created a hostile work environment through repeated offensive remarks and three specific incidents of threats tied to job benefits, none of which were carried out.50 Ellerth received her promotion and suffered no tangible change in employment status.51 Under these circumstances the agency relation aided Slowik in committing the harassment, triggering vicarious liability for Burlington, subject only to the affirmative defense that Burlington may now attempt to establish on remand.52
An employer is subject to vicarious liability for a supervisor's creation of a hostile work environment when no tangible employment action is taken, subject to an affirmative defense.53
Related opinions on this issue
Joined by Justice Scalia
Justice Thomas dissented from the imposition of vicarious liability. He maintained that as the Court concedes, a supervisor's creation of a hostile work environment is neither within the scope of employment, nor part of his apparent authority. He argued that an employer should be liable only if negligent in permitting the conduct to occur.54
He would have held Burlington not liable under a negligence standard because the company maintained a policy and Ellerth never reported the harassment. His dissent stressed that the majority's approach creates different standards for racial and sexual harassment and fails to provide clear guidance on the affirmative defense.55