524 U.S. 775 (1998)
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).1 During this period, Faragher's immediate supervisors were Bill Terry, David Silverman, and Robert Gordon.2 In June 1990, Faragher resigned.3
In 1992, Faragher brought an action against Terry, Silverman, and the City, asserting claims under Title VII, Rev. Stat. § 1979, 42 U. S. C. § 1983, and Florida law.4 So far as it concerns the Title VII claim, the complaint alleged that Terry and Silverman created a "sexually hostile atmosphere" 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.5 The complaint contained no allegation that Terry or Silverman threatened or effected any "tangible" alteration in Faragher's employment status, such as discharge, demotion, or denial of any economic benefit.6
Following a bench trial, the United States District Court for the Southern District of Florida found that 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.7 Silverman was a Marine Safety lieutenant from 1985 until June 1989, when he became a captain.8 Gordon began the employment period as a lieutenant and at some point was promoted to the position of training captain.9 The District Court found that Terry and Silverman were agents of the City, and that their conduct created a hostile work environment. The District Court also found that the city had knowledge of the harassment.10
In February 1986, the City adopted a sexual harassment policy, which it stated in a memorandum from the City Manager addressed to all employees.11 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.12 In May 1990, two months before Faragher's resignation, the city revised its policy on sexual harassment and for the first time included a procedure that allowed employees to bypass their supervisors when registering a complaint.13 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.14
The Court of Appeals for the Eleventh Circuit, sitting en banc, reversed. The Court of Appeals held that the city could not be held liable under Title VII for the sexual harassment of its supervisory employees.15 The Supreme Court granted certiorari, 522 U. S. 1046 (1998), and reversed the judgment of the Court of Appeals, remanding for further proceedings.16
Whether an employer is vicariously liable under Title VII for a hostile work environment created by a supervisor with immediate or successively higher authority over the employee?17
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.18 When a supervisor exercises the authority actually delegated to him by the employer, the supervisor's conduct is that of the employer.19 The supervisor is aided in the agency relation by the existence of the agency relation in creating the discriminatory environment.20 The employer is subject to vicarious liability for the supervisor's harassment if the harassment culminates in a tangible employment action.21 If no tangible employment action is taken, the employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.22
Yes. Between 1985 and 1990 Beth Ann Faragher worked as an ocean lifeguard for the City of Boca Raton under the immediate supervision of Bill Terry and David Silverman, both of whom held authority to hire, supervise work assignments, deliver reprimands, and impose discipline within the Marine Safety Division.23 The District Court found after a bench trial that Terry and Silverman repeatedly subjected Faragher and other female lifeguards to uninvited offensive touching, lewd remarks, and demeaning comments about women, thereby creating a hostile work environment that altered the conditions of employment.24 No tangible employment action such as discharge or demotion was alleged or found.25
Because the supervisors exercised delegated authority in their daily oversight of lifeguards at a remote beach location with minimal contact with higher city officials, their harassing conduct is attributable to the City under traditional agency principles, rendering the City vicariously liable subject only to the affirmative defense available when no tangible action occurs.26
The employer is vicariously liable under Title VII for the hostile work environment created by supervisors with immediate authority over the employee when no tangible employment action is taken.27
Related opinions on this issue
Joined by Justice Scalia
The Court today manufactures a rule of vicarious liability for a supervisor's creation of a hostile work environment under Title VII.28 The rule is a departure from the agency principles that we have hitherto said should be used to determine employer liability.29 The rule is also a departure from the common law of agency that we have said should be used to determine employer liability.30 I respectfully dissent.31
The Court's rule is not based on the text of Title VII.32 The statute makes it unlawful for an employer to discriminate.33 The statute defines employer to include any person engaged in an industry affecting commerce.34 The statute does not define person to include supervisors.35 The statute does not provide for vicarious liability.36 The Court's rule is a policy choice.37 It is not compelled by the statute.38
The Court's rule is also not compelled by our precedents.39 In Meritor, we held that an employer is not automatically liable for sexual harassment by its supervisors.40 We said that the lower courts should look to agency principles for guidance.41 The Court today abandons that approach.42 The Court's rule is a judicially created standard that has no basis in the statute or in our precedents.43 I would affirm the judgment of the Court of Appeals.44
Whether an employer may raise an affirmative defense to liability or damages for supervisor harassment when no tangible employment action is taken?45
If no tangible employment action is taken, the 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.46 The first element requires that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior.47 The second element requires that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.48 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.49 No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action.50
Yes. The District Court found no tangible employment action affecting Faragher's status.51 The City therefore could raise the two-element affirmative defense.52 The first element requires proof that the employer exercised reasonable care to prevent and correct harassing behavior.53
The City adopted a sexual harassment policy in February 1986 but never disseminated it to Marine Safety Division employees, leaving Terry, Silverman, and many lifeguards unaware of its existence.54 A revised policy allowing bypass of supervisors was issued only in May 1990, after the harassment had persisted for years.55 The second element requires proof that the employee unreasonably failed to take advantage of preventive opportunities.56 Faragher spoke informally to Gordon but did not file a formal complaint until after Nancy Ewanchew's April 1990 letter prompted an investigation.57
Because the City cannot satisfy the first element on these facts, the affirmative defense fails even though no tangible action occurred.58
An employer may raise the affirmative defense when no tangible employment action occurs, but the defense fails here because the City did not exercise reasonable care to prevent the harassment.59
Related opinions on this issue
Joined by Justice Scalia
For the reasons given in my dissenting opinion in Burlington Industries, Inc. v. Ellerth, absent an adverse employment consequence, an employer cannot be held vicariously liable if a supervisor creates a hostile work environment. Petitioner suffered no adverse employment consequence; thus the Court of Appeals was correct to hold that the city of Boca Raton is not vicariously liable for the conduct of Chief Terry and Lieutenant Silverman.60 Because the Court reverses this judgment, I dissent.61
As for petitioner's negligence claim, the District Court made no finding as to the City's negligence, and the Court of Appeals did not directly consider the issue.62 I would therefore remand the case to the District Court for further proceedings on this question alone.63 I disagree with the Court's conclusion that merely because the City did not disseminate its sexual harassment policy, it should be liable as a matter of law.64 The City should be allowed to show either that there was a reasonably available avenue through which petitioner could have complained to a City official who supervised both Chief Terry and Lieutenant Silverman.65 Alternatively, the City could show that it would not have learned of the harassment even if the policy had been distributed.66 Petitioner, as the plaintiff, would of course bear the burden of proving the City's negligence.67
Whether the City of Boca Raton exercised reasonable care to prevent and correct sexually harassing behavior by its lifeguard supervisors?68
The first element of the affirmative defense requires that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior.69 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.
No. The City adopted a sexual harassment policy in February 1986 but completely failed to disseminate it among Marine Safety Section employees, with the result that Terry, Silverman, Gordon, and many lifeguards remained unaware of its contents throughout Faragher's employment.70 The policy also lacked any assurance that a harassing supervisor could be bypassed in registering complaints.71 Although the City revised the policy in May 1990 to include a bypass procedure, this change came only after years of unchecked harassment at the remote beach location and after Nancy Ewanchew's complaint finally reached the Personnel Director.72 The District Court found that the City made no attempt to keep track of the conduct of supervisors like Terry and Silverman.73
These facts establish as a matter of law that the City did not exercise reasonable care to prevent or correct the supervisors' harassing behavior.74
The City of Boca Raton did not exercise reasonable care to prevent and correct sexually harassing behavior by its lifeguard supervisors.75
Related opinions on this issue
Joined by Justice Scalia
For the reasons given in my dissenting opinion in Burlington Industries, Inc. v. Ellerth, absent an adverse employment consequence, an employer cannot be held vicariously liable if a supervisor creates a hostile work environment. Petitioner suffered no adverse employment consequence; thus the Court of Appeals was correct to hold that the city of Boca Raton is not vicariously liable for the conduct of Chief Terry and Lieutenant Silverman. Because the Court reverses this judgment, I dissent.