UC Santa Cruz Title IX/Sexual Harassment Office


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FARAGHER v. CITY OF BOCA RATON, June 1998, US Supreme Court
Summary and Analysis by UC General Counsel Melvin W. Beal

After resigning as a lifeguard, Beth Ann Faragher brought a Title VII employment discrimination action against her immediate supervisors and the city. She alleged that the supervisors had created a sexually hostile atmosphere at work by repeatedly subjecting her and other female lifeguards to uninvited and offensive touching, by making lewd remarks, and by speaking of women in offensive terms.

The issue before the Court was the identification of the circumstances under which an employer may be held liable under Title VII of the Civil Rights Act of 1964, for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination. The court held that 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 comprised 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. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion or undesirable reassignment.

The opinion of the Court outlines in detail the various bases, asserted by lower courts, on which liability may be imposed on an employer for the actions of a supervisor. Various theories of agency are discussed, as well as the concept of "scope of employment." Among the reasons given by the Court for holding employers vicariously liable is that "there is a sense in which a harassing supervisor is always assisted in his misconduct by the supervisory relationship."

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. The supervisor's 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 supervisors abusive conduct the same way that she/he might deal with abuse from a co-worker." Whereas one can walk away from a co-worker, it may be difficult to do so in the case of a supervisor. Recognition of employer liability is underscored by the fact that the employer has a greater opportunity to guard against misconduct by supervisors than by other workers; employers have greater opportunity and incentive to screen them, train them, and monitor their performance.

As to the affirmative defense, the Court states that it would implement clear statutory policy and complement the governments Title VII enforcement efforts to recognize the employer's affirmative obligation to prevent violations and give credit to employers who make reasonable efforts to discharge their duty. "Indeed, a theory of vicarious liability for misuse of supervisory power would be at odds with the statutory policy if it failed to provide employers with some such incentive." Likewise, the Court says, the requirement to show that the employee has failed in a coordinated duty to avoid or mitigate harm reflects an equally obvious policy imported from the general theory of damages, that a victim has a duty to use such means as are reasonable under the circumstances to avoid or minimize the damages that result from violations of the statute. The victim should not recover damages that could have been avoided if she/he had done so.

The language of the Court relating to the victims obligation, given the current status of the University's well established sexual harassment policies and procedures, is encouraging: "An employer may, for example, have provided a proven, effective mechanism for reporting and resolving complaints of sexual harassment, available to the employee without undue risk or expense. If the plaintiff unreasonably failed to avail her/him self of the employer's preventive or remedial apparatus, she/he should not recover damages that could have been avoided if she/he had done so. If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided."

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Contact Rita Walker , Title IX Officer: 105 Kerr Hall . email: rew@ucsc.edu . phone 831.459.2462 * 831.459.4825