Burlington Indus. v. Ellerth

524 U.S. 742, 118 S. Ct. 2257 (1998)



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 comprising of 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.


An employee refused the unwelcome and threatening sexual advances of a supervisor. She suffered no adverse tangible job consequences because of her refusal of the supervisor's advances. The employee filed suit against the employer alleging a violation of sexual harassment under vicarious liability. The trial court granted summary judgment in favor of the employer, but the intermediate appellate court reversed. 


Is the employer vicariously liable for the discriminatory harassment committed by its supervisor?




The Court held that the employer was vicariously liable for any actionable hostile work environment created by the supervisor, who had authority over the employee, if it knew or should have known about the conduct and failed to stop it. Because the supervisor took no tangible adverse employment action against the employee, the employer could raise an affirmative defense to liability or damages by asserting that it took reasonable care to prevent sexually harassing behavior and that the employee failed to take advantage of corrective opportunities provided by the employer.

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