After resigning as a lifeguard with respondent City of Boca Raton (City),
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, alleging, among other things, that the supervisors had
created a "sexually hostile atmosphere" at work 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, and
that this conduct constituted discrimination in the "terms, conditions,
and privileges" of her employment in violation of Title VII of the Civil
Rights Act of 1964, 42
U.S.C. § 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, 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.
Held : 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. Pp. 7-32.
(a) While the Court has delineated the substantive contours of the hostile
environment Title VII forbids, see, e.g. , Harris v. Forklift
Systems, Inc., 510
U.S. 17, 21-22, its cases have established few definitive rules for
determining when an employer will be liable for a discriminatory environment
that is otherwise actionably abusive. The Court's only discussion to date
of the standards of employer liability came in Meritor , supra
, where the Court held that traditional agency principles were relevant
for determining employer liability. Although the Court cited the Restatement
§§219-237 with general approval, the Court cautioned that common-law
agency principles might not be transferable in all their particulars. Pp.
7-14.
(b) Restatement §219(1) provides that "a master is subject to liability
for the torts of his servants committed while acting in the scope of their
employment." Although Title VII cases in the Court of Appeals have typically
held, or assumed, that supervisory sexual harassment falls outside the
scope of employment because it is motivated solely by individual desires
and serves no purpose of the employer, these cases appear to be in tension
with others defining the scope of the employment broadly to hold employers
vicariously liable for employees' intentional torts, including sexual assaults,
that were not done to serve the employer, but were deemed to be characteristic
of its activities or a foreseeable consequence of its business. This tension
is the result of differing judgments about the desirability of holding
an employer liable for his subordinates' wayward behavior. The proper analysis
here, then, calls not for a mechanical application of indefinite and malleable
factors set forth in the Restatement, but rather an enquiry into whether
it is proper to conclude that sexual harassment is one of the normal risks
of doing business the employer should bear. An employer can reasonably
anticipate the possibility of sexual harassment occurring in the workplace,
and this might justify the assignment of the costs of this behavior to
the employer rather than to the victim. Two things counsel in favor of
the contrary conclusion, however. First, there is no reason to suppose
that Congress wished courts to ignore the traditional distinction between
acts falling within the scope of employment and acts amounting to what
the older law called frolics or detours from the course of employment.
Second, the lower courts, by uniformly judging employer liability for co-worker
harassment under a negligence standard, have implicitly treated
such harassment outside the scope of employment. It is unlikely that such
treatment would escape efforts to render them obsolete if the Court held
that harassing supervisors necessarily act within the scope of their employment.
The rationale for doing so would apply when the behavior was that of co-employees,
because the employer generally benefits from the work of common employees
as from the work of supervisors. The answer to this argument might be that
the scope of supervisory employment may be treated separately because supervisors
have special authority enhancing their capacity to harass and the employer
can guard against their misbehavior more easily. This answer, however,
implicates an entirely separate category of agency law, considered in the
next section. Given the virtue of categorical clarity, it is better to
reject reliance on misuse of supervisory authority (without more) as irrelevant
to the scope-ofemployment analysis. Pp. 14-23.
(c) The Court of Appeals erred in rejecting a theory of vicarious liability
based on §219(2)(d) of the Restatement, which provides that an employer
"is not subject to liability for the torts of his servants acting outside
the scope of their employment unless . . . the servant purported to act
or speak on behalf of the principal and there was reliance on apparent
authority, or he was aided in accomplishing the tort by the existence of
the agency relation." It makes sense to hold an employer vicariously liable
under Title VII for some tortious conduct of a supervisor made possible
by use of his supervisory authority, and the aided-by-agency-relation principle
of §219(2)(d) provides an appropriate starting point for determining
liability for the kind of harassment presented here. In a sense a supervisor
is always assisted in his misconduct by the supervisory relationship; however,
the imposition of liability based on the misuse of supervisory authority
must be squared with Meritor 's holding that an employer is not
"automatically" liable for harassment by a supervisor who creates who creates
the requisite degree of discrimination. There are two basic alternatives
to counter the risk of automatic liability. The first is to require proof
of some affirmative invocation of that authority by the harassing supervisor;
the second is to recognize an affirmative defense to liability in some
circumstances, even when a supervisor has created the actionable environment.
The problem with the first alternative is that there is not a clear line
between the affirmative and merely implicit uses of supervisory power;
such a rule would often lead to close judgment calls and results that appear
disparate if not contradictory, and the temptation to litigate would be
hard to resist. The second alternative would avoid this particular temptation
to litigate and implement Title VII sensibly by giving employers an incentive
to prevent and eliminate harassment and by requiring em ployees
to take advantage of the preventive or remedial apparatus of their employers.
Thus, the Court adopts the following holding in this case and in Burlington
Industries, Inc. v. Ellerth , p. ___, also decided today. 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. See Fed. Rule Civ. Proc. 8(c). 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.
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. And while proof that an employee failed to fulfill the
corresponding obligation of reasonable care to avoid harm is not limited
to showing an unreasonable failure to use any complaint procedure provided
by the employer, a demonstration of such failure will normally suffice
to satisfy the employer's burden under the second element of the defense.
No affirmative defense is available, however, when the supervisor's harassment
culminates in a tangible employment action, such as discharge, demotion,
or undesirable reassignment. Pp. 23-30.
(d) Under this standard, the Eleventh Circuit's judgment must be reversed.
The District Court found that the degree of hostility in the work environment
rose to the actionable level and was attributable to Silverman and Terry,
and it is clear that these supervisors were granted virtually unchecked
authority over their subordinates and that Faragher and her colleagues
were completely isolated from the City's higher management. While the City
would have an opportunity to raise an affirmative defense if there were
any serious prospect of its presenting one, it appears from the record
that any such avenue is closed. The District Court found that the City
had entirely failed to disseminate its sexual harassment policy among the
beach employees and that its officials made no attempt to keep track of
the conduct of supervisors, and the record makes clear that the City's
policy did not include any harassing supervisors assurance that could be
bypassed in registering complaints. Under such circumstances, the Court
holds as a matter of law that the City could not be found to have exercised
reasonable care to prevent the supervisors' harassing conduct. Although
the record discloses two possible grounds upon which the City might seek
to excuse its failure to distribute its policy and to establish a complaint
mechanism, both are contradicted by the record. The City points to nothing
that might justify a conclusion by the District Court on remand that the
City had exercised reasonable care. Nor is there any reason to remand for
consideration of Faragher's efforts to mitigate her own damages, since
the award to her was solely nominal. Pp. 30-32.
(e) There is no occasion to consider whether the supervisors' knowledge
of the harassment could be imputed to the City. Liability on that theory
could not be determined without further factfinding on remand, whereas
the reversal necessary on the supervisory harassment theory renders any
remand for consideration of imputed knowledge (or of negligence as an alternative
to a theory of vicarious liability) entirely unjustifiable. P. 32.
111 F. 3d 1530, reversed and remanded.
SOUTER , J., delivered the opinion of the Court, in which REHNQUIST
, C. J., and STEVENS , O'CONNOR , KENNEDY , GINSBURG , and BREYER , JJ.,
joined. THOMAS , J., filed a dissenting opinion, in which SCALIA , J.,
joined.
