UC Santa Cruz Title IX/Sexual Harassment Office


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Legal Updates

 Overview | Update 1 | Update 2 | Update 3 | Update 4 | Update 5

BURLINGTON INDUSTRIES v. ELLERTH, June 1998, US Supreme Court, Summary and Analysis by UC General Counsel Melvin W. Beal

Kimberly Ellerth, a salesperson at one of Burlington's divisions, filed a Title VII action alleging that she had been sexually harassed which forced her constructive discharge. The harassing behavior was that of her supervisor who engaged in repeated boorish and offensive remarks and gestures, including threats to deny her tangible job benefits.

The Court held that under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions, but the employer may interpose an affirmative defense. The Court's specific language in its holding in Burlington is exactly the same as that in Faragher.

The Court takes the opportunity in this case to clarify its view regarding the distinction between quid pro quo and environmental harassment. Following mention of these concepts in the landmark Meritor Savings Bank v. Vincent (1986) the lower courts and the EEOC, for the most part, followed the principle that an employer was subject to vicarious liability in the case of quid pro quo sexual harassment, but not in the case of environmental harassment. Thus, plaintiffs attempted to stretch the concept of quid pro quo harassment in order to reap the benefits of vicarious liability. Ellerth did so in fashioning the question before the Court. The Court categorically rejected the notion that the quid pro quo/hostile environment distinction has any utility beyond making a rough demarcation between cases in which threats are carried out and those where they are not or where they are absent altogether. In Meritor, according to the Court, the distinction was not discussed for its bearing upon an employer's liability for an employee's discrimination. As the cases developed after Meritor the standard of employer liability usually turned on which type of harassment occurred. In the Burlington case, the Court concluded that unfulfilled threats ought to be characterized as a hostile work environment claim, which requires a showing of severe or pervasive conduct. The issue of vicarious liability still remains.

The Court reviews a number of imputed liability issues (scope of employment, master-servant, "apparent authority" standard, "aided in the agency relation" standard). Ultimately, the Court believes the concept of a "tangible employment action" is central.

"[W]e think it prudent to import the concept of a tangible employment action for resolution of the vicarious liability issue we consider here. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits."

For Title VII purposes, a tangible employment action taken by the supervisor becomes the act of the employer. The Court states that it would be implausible to interpret agency principles to allow an employer to escape liability. Stated in a different way, where a tangible employment action occurs, the Court is adopting the old quid pro quo vicarious liability standard.

Of course, the more difficult and interesting question is whether the agency relation aids in commission of supervisor harassment, which does not culminate in a tangible employment action. The Court recognizes that on the one hand, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, "and in a sense, a supervisor always is aided by the agency relation." Quoting Justice Marshall in Meritor: "It is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates." On the other hand, supervisors can commit harassing acts that are the same as a co-worker might commit and where the supervisor's status makes no difference. The Court then adopts the vicarious liability standard for supervisor's acts even where no tangible employment action results.

The Court concludes: "In order to accommodate the agency principles 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 . . . ." and goes on to adopt the identical holding as that expressed in Faragher. There is vicarious liability for all sexually harassing acts of supervisors, but an affirmative defense where those harassing acts do not culminate in a tangible employment action.

One final point: It is important to keep in mind that these decisions of the Supreme Court interpret federal statutes. Civil actions under California law, e.g., under Fair Employment and Housing Act, are not affected by these decisions. However, we might anticipate that in the future California courts will follow the lead of the U.S. Supreme Court in defining sexual harassment and the scope of employer liability.

Overview | Update 1 | Update 2 | Update 3 | Update 4 | Update 5

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