Law School Case Brief
Faragher v. City of Boca Raton - 524 U.S. 775, 118 S. Ct. 2275 (1998)
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate 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: (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.
After resigning as a lifeguard with defendant respondent City of Boca Raton (City), plaintiff petitioner Beth Ann Faragher brought an action against the City and her immediate supervisors, Bill Terry and David Silverman, for nominal damages and other relief, asserting that the two had allegedly created a sexually hostile atmosphere, which thereby constituted discrimination in Faragher’s terms, conditions, and privileges of employment, in violation of 42 USCS 2000e-2(a)(1). Following a bench trial, the District Court concluded that the supervisors' conduct was discriminatory harassment sufficiently serious to alter the conditions of Faragher's employment and constitute an abusive working environment. The District Court then held that the City could be held liable for the harassment of its supervisory employees because the harassment was pervasive enough to support an inference that the City had "knowledge, or constructive knowledge" of it; under traditional agency principles Terry and Silverman were acting as the City's agents when they committed the harassing acts; and a third supervisor had knowledge of the harassment and failed to report it to City officials. The Eleventh Circuit, sitting en banc, reversed. Relying on Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399, and on the Restatement (Second) of Agency 219 (1957) (Restatement), the Court of Appeals held that Terry and Silverman were not acting within the scope of their employment when they engaged in the harassing conduct, that their agency relationship with the City did not facilitate the harassment, that constructive knowledge of it could not be imputed to the City because of its pervasiveness or the supervisor's knowledge, and that the City could not be held liable for negligence in failing to prevent it.
In an action under Title VII of the Civil Rights Act of 1964 for an alleged sexually hostile work environment created by plaintiff's supervisors, can defendant employer City be held liable for the actions of its employees?
On writ of certiorari, the Supreme Court of the United States held that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim. According to the Court, when no tangible employment action was taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence - this defense comprised the two necessary elements: (i) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (ii) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. In the case at bar, the Court concluded that the employer City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct. The Court reversed the lower court's reversal of the judgment entered in favor of petitioner. The Court remanded for reinstatement of the original judgment, subject to a defense based on reasonableness of the City's conduct.
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