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1998.07.07_TC_Minutes_Special a •~ ~ 1 > > TOWN OF HIGHLAND BEACH MINUTES OF TOWN COMMISSION MEETING SPECIAL MEETING Tuesday July 7 1998 2:45 P.M. Mayor Arlin G. Voress called the Special Meeting to order in Commission Chambers at 2:45 P.M., stating its purpose was regarding Town Manager Mary Ann Mariano's absence from Town Hall and legal alternatives available to the Town in this regard. Acting Town Clerk Jane Dillon called the roll. The Mayor, Vice Mayor Thomas J. Reid, and Commissioners David Augenstein, Michael W. Hill and John J. Sorrelli were present. Town Attorneys Thomas E. Sliney and Larry Corman, and Acting Town Manager Doris M. Trinley were present, as well as members of the general public. After Mayor Voress opened the meeting, he asked for Public Comments of which there were none. The Mayor read his comments into the record, concluding with three • questions for legal counsel's response. (The Mayor's comments are attached hereto and made a part of these minutes.) Attorney Corman responded to the Mayor's questions, and offered his legal advice to the Commission in regard to this matter. (Attorney Corman's comments are attached hereto and made a part of these minutes.) Mayor Voress presented his view that termination was in order, allowing the process of hiring a new Town Manager to begin, which may take anywhere from 4 - 6 months. The Mayor asked for a a Motion to terminate Mary Ann Mariano effective today, and initiate a process which would result in the hiring of a new Town Manager. Upon MOTION by COMMISSIONER AUGENSTEIN/COMMISSIONER SORRELLI, the motion was unanimously passed with the following roll call vote: Commissioner John J. Sorrelli yes Commissioner Michael W. Hill Yes Commissioner David Augenstein yes Vice Mayor Thomas J. Reid Yes Mayor Arlin G. Voress Yes With no further business to come before the Commission at this time, T~ayor Voress adjourned the meeting at 3:30 P.M. upon MOTION h~y, cO!~IISSIONER AUGENSTEIN/VICE MAYOR REID. .~ , '14 , ~ ~ Town of Highland Beach Special Meeting Minutes • APPROVE: C~----~ Arlin G. Voress, Mayor Thomas J. Reid, Vice Mayor David Augenste ieh~~ W. Hiles inner ~~~ '~`,~~ issioner v Jo J. S relli, Commissioner July 7, 1998 Page 2 ATTEST : ~ ~`~--i1°~" ~ DATE : ~" ~C TC7798.SPE ~ ` ~ ~, COMMENTS BEFORE THE 7/7/98 PUBLIC HEARING/SPECIAL MEETING OF THE TOWN COMMISSION OF THE TOWN OF HIGHLAND BEACH I would like to share with you some thoughts relative to the position we find ourselves in today relative to Mary Ann Mariano. This position is the result of the Town Commission's response to the events surrounding the Town Manager's unexcused absence from Town Hall over the last two months period. Also additional information has become available since our last meeting. After much thought, I believe we should move forward from the position we are in today. To refresh everyone's memory, I wish to go back several months. On April 27,1998, the Town Manager advised us, by memo, that she would be "undergoing a surgical procedure on Wed. April 29 and subsequent to this procedure I will be able to determine any additional necessary absence from the office". She did not describe the nature of the procedure, where it was to be performed, the name of the physician involved, and she has not told us of the outcome. Moreover, since that Apri127~` memo, we have received no formal notification from her relative to the date of her anticipated return to work at the office. On May 11`h, the Town received, by mail, a memorandum dated May 5`t' addressed "To Whom It May Concern". Written by a licensed certified social worker and countersigned by her husband, a PhD consultant whose credentials are not evident from the stationery, it states that the condition from which Mary Ann is suffering, has been ongoing since January, 1997 and that it is of such a • nature that Mary Ann requires " a work place leave of indeterminate length" from her duties as Town Manager. Mary Ann never indicated to me or, as far as I know, to any one at Town Hall that she suffered from such a debilitating condition. It did not prevent her from coming to Town Hall to perform her duties from January, 1997 until April 1998. Despite the statement in the May 5~' memorandum for a work place leave, Mary Ann continued to come to Town Hall on nights and weekends, and she called Town employees, from time to time, to issue instructions. She even called a meeting with Town department heads, in the latter part of May, via a telephone speakerphone. Only after the Town Commission relieved her on June 9, 1998, of all duties of Town Manager, did she cease getting involved with Town employees via telephone and issuing notes and instructions. Under our Town Personnel Rules and Regulations, any employee who desires a medical or personal leave must request it. If an employee is absent from work for more than three days, on the grounds of illness, upon a supervisor's request, the employee must support the request for a medical leave by a back-up certificate from a medical doctor attesting to the condition that necessitates the leave. Despite requests in writing from me for a medical certificate, Mary Ann did not and has not provided a physician's statement supporting the recommendation set forth in the " To whom it may concern" memorandum of May 5` .Because Mary Ann was absent without leave, the Town suspended her. The Town's Rules and Regulations require a medical doctor's certificate. We have every right and obligation to require compliance with our Rules and Regulations. In a memo, dated June 1,1998, Mary Ann stated that she believes the May 5th statement • is sufficient documentation of her sick leave. However, she goes on to state: "xxx since the Town's Personnel Rules and Regulations require a medical doctor's statement, I will try to comply with your request for documentation of my illness." Thus, you will note that, in effect, she acknowledges that this Commission is simply enforcing the Town Rules and Regulations by requesting a doctors certificate. She goes on to state: "xxx I am faxing and mailing to you today a letter from my cazdiologist xxx" She states further: "Since your request seems to demand a medical doctor's statement xxx I am attempting to rectify the situation shortly. I anticipate that a relevant report will be forwazded to you shortly" In the memo she also sets forth the reason she cannot come to Town Hall during normal working hours. She states: " It is not the work itself that is causing me stress. It is the contact with certain persons, most notably, those who aze trying to vilify me for asserting rights under State and Federal employment acts". I promptly wrote her a letter in which I stated:"I am mystified by the statement in your June 1, 1998 memo that it is the contact with certain persons, most notably, those who are trying to vilify me for asserting rights under State and Federal employment acts" that you cannot tolerate. As you know, any retaliatory acts would violate both State and Federal laws. I have not observed any such retaliatory conduct directed against you at Town Hall. Please advise me, as required by Town policy, of the identity(s), of person(s) to whom your memo refers and identify the date(s),time(s), place(s), and witness(s) to any such event(s) so that the Town can conduct an investigation and take appropriate remedial actions, if necessary" She has not responded to my letter of more than a month ago. • On the same date that we received the memo from Mary Ann, namely, June 1: her lawyers advised, that Mary Ann had a scheduled appointment with a named psychiatrist, June 2, and that after the appointment the doctor would be asked to forward to the Town a letter opuuon regazding Mary Ann. The Town has not received a letter from any psychiatrist stating that Mary Ann cannot show up for work. In the memorandum of May 5th, the licensed certified social worker stated that she had spoken to the Cazdiologist and he "has concurred with my recommendation of a work place leave of indeterminate length. xxx". The Cardiologist's "To whom it may concern "note sent to us on June 1,1998, does not contain any language to the effect that Mary Ann requires a work place leave of indeterminate length. Nor does it state that she is unable, for health reasons, to come to Town Hall during working hours. His note is extremely vague in nature and does not constitute evidence of a need for a work place leave of indeterminate length. We had hoped that we would receive adequate documentation from Mary Ann promptly so that we could classify her absence as sick leave, authorize resumption of Mary Ann's pay, and chazge her absences from Town hall to her accumulated sick leave. That did not happen and on June 9 the Commission moved to grant her atwo-week period, ending June 23, to submit the required certificate. June 23 passed without any required submission. On June 17, Mary Ann's attorney sent our attorney a letter, that among other things, requested that her absence, to the extent not sick leave, be chazged against her annual leave allowance accrued to date. The Town has complied with that request. The Town Finance .7 Department has advised that as of May 28, accrued vacation payments expired and no additional payment will be made to Mary Ann, as she has still not qualified for accrued sick leave benefits. As I have previously said there is an obligation on the part of the Commission which requires that we enforce the Town's Rules and Regulations to the effect that an employee be permitted to remain away from the workplace for an extended period of time only if the employee submits the kind of evidence of a health need for such leave as prescribed by the Town Rules and Regulations. We are not being " hypertechnical "when we call for Rule compliance and any such claim rings hollow. It is particularly important that we insist on such a certificate in this instance because the employee is the Town's principal employee, the leave being requested is for indeterminate length of time, and the employee appears to be claiming that the illness is the result of wrongful conduct on the part of Town officials. In the memorandum to me dated June 1 1998, which covered several issues, Mary Ann asserted that she could adequately perform her duties as Town Manager from home by telephone without coming to Town Hall. She said that she would like the Commission to approve such an arrangement. That suggested arrangement seemed to me to be a totally unrealistic approach; One which was not designed to serve the best interests of the Town residents. Among other things, the Town Manager should be available, on site, on working days. This is necessary for face-to-face discussions with the Members of the Town Commission, the Town employees, and members of the public, various business and other people who visit Town Hall to discuss some aspect of an • interface with the Town. The Town Commission agreed and appointed an Acting Town Manager and relieved Mary Ann of all duties as Town Manager. As you know, the EEOC had scheduled a conciliation conference with the EEOC, Mary Ann and her attorneys, and the Mayor and Town attorneys, for Thursday June 25 at 1:30PM in Miami. We had hoped that we might be able to work out a settlement agreement at that time. However the meeting was cancelled Wednesday June 24, by the EEOC. The reason given for the cancellation was the failure of Mary Ann's attorney, to provide the EEOC with documentation and information requested, by their office, to substantiate Mary Ann Mariano's allegations regarding her purported damages. We were obviously very disappointed with this action and have so indicated to the EEOC. We have requested that the meeting be rescheduled in July. No word has been received from the EEOC relative to a new date for the conciliation conference. An update, dated June 19,1998, has been received, through Mary Ann's lawyer, from Mary Ann's licensed certified social worker. The communication is unsigned and we have so noted to her lawyer. What is significant is that we have not received an any further documentation from Ms. Mariano's health care providers or responses to medical questionnaires provided to her lawyers. It is our understanding that answers to the questionnaires will not be provided. While Doris Trinley is on the job as Acting Town Manager and has taken all the necessary steps to fulfill all aspects of the Town Managers responsibilities, she has accepted this assignment, to fill in, on a temporary basis. It is her desire to be relieved as soon as practicable and return to her previous assignment as Town Clerk. I believe that we should honor her request. • It should be done, in a manner that satisfies the long-term need of the Town for a full time, on R ~ ~~ l • ~ • site Town manager and allows for a smooth transition of personnel from the current arrangement to a more normal and traditional organizational structure. We have not had a full time Town Manager for some several months. One who, among other things, will be available at Town Hall, on working days, for face-to-face discussions with the Members of the Town Commission, the Town employees, and members of the public, various business and other people who visit Town Hall to discuss some aspect of an interface with the Town government. The Town Department Heads and employees also need to have their Town Manager present to assist them, answer questions relative to policy, give interpretations of rules and practices, etc. In addition, the Town Manager needs to be available to talk with and discuss issues with Town Commissioners when they stop in at Town Hall at vazious times during the week. The Town Manager needs to show up at Town commission meetings where a dialogue can be held among all commissioners. The Town Manager also periodically attends meetings with the Town Boards to provide insight, background, and answers to questions as needed. This provides the Boards with all necessary resources, at the Town's command, for making decisions. All of these things have not been happening for several months now and in my opinion detracts from service to our residents, to vazious normal outside interfaces, to running the Town business, and the efficiency and morale of the staff. I have now set forth the documented unvarnished facts. Before I take up the question of what action the Commission should take, I would like to ask our attorneys to answer three questions for the members of the Commission: (1) Has the Commission acted legally in requiring that a medical doctor's certificate be submitted and in not accepting the documentation furnished by Mary Ann Mariano? • (2) Do the facts as I have stated them constitute just cause to terminate Mary Ann Mariano as Town Manager, under her contract, for absence without leave and/or neglect of duty? (3) May we properly take such action at this time? AGV 7/7/98 Tell the "it depends" story. Changing nature of the law - evolves - appellate court process. Title VII sexual harassment - relatively new legal concepts. Just recent Supreme Court issued rulings that changed legal standards - overruled Federal trial and appellate Court developed standards, including 11th Circuit which was just a couple of weeks ago "the law" in Florida. (1) Town has right, duty to require that employees requesting sick leave document their leave. Town Personnel Rules and Regulations require employees absent more than three (3) consecutive days to document reason for illness with doctor's statement. Applicable laws, including the ADA, require employees to cooperate with their employers to substantiate existence of medical illness or disability and need for accommodations. Only accommodations employers must provide are reasonable ones. In this instance: Ms. Mariano has not provided Town with a statement from a medical doctor that she cannot appear for work at Town Hall for medical reasons. Ms. Mariano has acknowledged that the Town's rules require a medical doctor's statement justifying sick leave, has stated she will provide one, but has failed to do so. Ms. Mariano's LCSW stated that Ms. Mariano needs an indefinite work leave. Ms. Mariano advised the Town that, in fact, she does not really need an indefinite leave, as she can work, just not at Town hall, purportedly due to the acts of unidentified individuals who have purportedly been vilifying her. Ms. Mariano's LCSW's letter does not suggest that Ms. Mariano can work at home. To clarify the conflict between Ms. Mariano's LCSW's letter and Ms. Mariano's statements and actions, and to determine if Ms. Mariano's doctors believe work place sick leave was required, we provided Ms. Mariano's attorney with a medical questionnaire form. The forms have not been filled out and returned to the Town and Ms . Mariano' s attorney has advised that they will not be completed. In addition, responsive, appropriate information justifying Ms. Mariano's absence has not been provided by her medical doctors. Ms. Mariano has failed to comply with the Town's Rules • and Regulations. The Town has given Ms. Mariano ample opportunity to document her need to be absent with a medical doctor's statement. (2) Town has right to require Town Manager to be at work regularly. Under existing statutes, case law - If Town Manager cannot or will not appear for work, Town has right to terminate employment and procure a replacement. (3 ) Ms . Mariano clearly intends to pursue her harassment and retaliation cases. Her course of conduct is blatantly intended to increase the amount of damages she will claim. If Ms. Mariano is terminated, her lost wages, emotional distress arising from the termination, will become issues in the case. 2 ~. . , Supreme Court ruling states, although not in a retaliation setting, that when adverse economic steps are taken against an employee, the existence of a harassment policy and the employees failure to use the policy are no longer an affirmative defense. The only defense will be that there was no retaliation, only legitimate action taken for proper business reasons. Existing case law states that an employees refusal or inability to show up for work gives the employer the right to terminate the employee. Existing case law states that a request to be allowed to work from one's home, when one is a supervisor, is not a request for a reasonable accommodation. Based on the foregoing, Town will have viable defenses to justify its decision to terminate Mary Ann, but Jury/Judge will have to believe that she was terminated for reasons stated by Town and not as retaliation for Mary Ann's filing of the EEOC Complaint. 101901 3 Page 3 • 1ST CASE of Level 1 printed in FULL format. BIIRLINGTON INDVSTRI83, INC., PETITIONER v. FCIMBERLY B_ ELLERTH No. 97-569 SUPREME COURT OF THE iJNITED STATES 1998 U.S. LEXIS 4217 April 22, 1998, Argued June 26, 1998, Decided NOTICE.:. [*1] This preliminary LEXIS version is unedited and subject to revision. The LEXIS pagination of this document is subject to change pending release of the final published version. PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCITIT. •ISPOSITION: 223 F.3d 490, affirmed. SYLLABUS: Respondent Kimberly Ellerth quit her job after 15 months as a salesperson in one of petitioner Burlington Industries' many divisions, allegedly because she had been subjected to constant sexual harassment by one of her supervisors, Ted Slowik. Slowik was a mid-level manager who had authority to hire and promote employees, subject to higher approval, but was not considered a policy-maker. Against a background of repeated boorish and offensive remarks and gestures allegedly made by Slowik, Ellerth places particular emphasis on three incidents where Slowik's comments could be construed as threats to deny her tangible job benefits. Ellerth refused all of Slowik's advances, yet suffered [*2] no tangible retaliation and was, in fact, promoted once. Moreover, she never informed anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. In filing this lawsuit, Ellerth alleged Burlington engaged in sexual harassment and forced her constructive discharge,. in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ~ 2000e et seq. The District Court granted Burlington summary judgment. The Seventh Circuit en banc reversed in a decision-that produced eight separate opinions and no consensus for a controlling rationale. Among other things, those opinions focused on whether Ellerth's claim could be categorized as one of quid pro quo harassment, and on whether the standard for an employer's liability on such a claim should be vicarious liability or negligence. Held: 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 •iegligent or otherwise at fault for the supervisor's actions, but the employer may interpose an affirmative defense. Pp. [*3] 6-21. na TM 7TM LEX1S ~ NEXiS' ~ LEXLS'~ NEX1S' ~ LEX1S ~ NEXIS' 1998 U.S. LEXIS 4217, *3 Page 4 (a) The Court assumes an important premise yet to be established: a trier of - fact could find in Slowik's remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. The threats, however, were not carried out. Cases based on carried-out threats. are referred to often as "quid pro quo" cases, as distinct from bothersome attentions or sexual remarks sufficient to create a "hostile work environment." Those two terms do not appear in Title VII, which forbids only "discrimination against any individual with respect to his terms [or] conditions of employment, because of . sex. " § 2000e -- Z (a) (i) . In Meritor Saviags Bank, FSB v. Yiasoa, 477 U. S. 57, , 65, this Court distinguished between the two concepts, saying both are cognizable under Title VII, though a hostile environment claim requires harassment that is severe or pervasive. Meritor did not discuss the distinction for its bearing upon an employer's liability for discrimination, but held, with no further specifics, that agency principles controlled on this point. Id., at 72. Nevertheless, in Meritor's wake, Courts of Appeals held that, if the plaintiff [*4] established a quid pro quo claim, the employer was subject to vicarious liability. This rule encouraged Title VII plaintiffs to state their claims in quid pro quo terms, which in turn put expansive pressure on the definition. For example, the question presented here is phrased as whether Ellerth can state a quid pro quo claim, but the issue of real concern to the parties is whether Burlington has vicarious liability, rather than. liability limited to its own negligence. This Court nonetheless believes the two terms are of limited utility. To the extent they illustrate the distinction between cases involving a carried-out threat and offensive conduct in general, they are relevant when there is a threshold question whether a plaintiff can prove discrimination. Hence, Ellerth's claim involves only unfulfilled threats, so it is a hostile work environment claim requiring a showing of severe or pervasive conduct. This Court accepts the District Court's finding that Ellerth made such a showing. When discrimination is thus proved, the factors discussed below, not the categories quid pro quo and hostile work environment, control on the issue of vicarious liability. Pp. 6-9. (b) [*5] In deciding whether an employer has vicarious liability in a case such as this, the Court turns to agency law principles, for Title VII defines the term "employer" to include "agents." § 2000e(b). Given this express direction, the Court concludes a uniform and predictable standard must be established as a matter of federal law. The Court relies on the general common law of agency, rather than on the law of any particular State. Coaunuaity for Creative Non-Violence v. Reid, 490 U. S. 730, 740. The Restatement (Second) of Agency (hereinafter Restatement) is a useful beginning point, although common-law principles may not be wholly transferable to Title VII. See Meritor, supra, at 72. Pp. 9-10. (c) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. Restatement § 219(1). Although such torts generally may be either negligent or intentional, sexual harassment under Title VII presupposes intentional conduct. An intentional tort is within the scope of employment when actuated, at least in part, by a purpose to serve the employer. Id., §§ 228(1)(c), 230. Courts of Appeals have held, however, a supervisor [*6] acting out of gender-based animus or a desire to fulfill sexual urges may be actuated by personal motives unrelated and even antithetical to the employer's objectives. Thus, the general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. Pp. 10-12. LEXIS ~ NEXIS' ~ ~ LEXIS ~ NEXIS' % ~ LEXIS • NEXiS' ~A mantic of rlx Rced Elaevic plc pouf ~ A member a ~bc heed Else.~ier Pk 4ouD ~ ~ A member d the Reed ~• .er elc slam Page 5 1998 U.S. LEXIS 4217, *6 However, scope of employment is not the only basis for employer liability under agency principles. An employer is subject to liability for the torts of its employees acting outside the scope of their employment when, inter alia, the employer itself was negligent or reckless, Restatement § 219(2)(b), or the employee purported to act or to speak on behalf of the employer and there was .reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation, id., § 219(2)(d). An employer is negligent, and therefore subject to liability under § 219(2)(b), if it knew or should have known about sexual harassment and failed to stop it. Negligence sets a minic~um standard for Title VII liability; but Ellerth seeks to invoke the more stringent standard of vicarious liability. Section 219(2)(d) makes an employer vicariously liable for sexual harassment [*7J by an employee who uses apparent authority (the apparent authority standard), or who was "aided in accomplishing the tort by the existence of the agency relation" (the aided in the agency relation standard). Pp. 12-14. (e) As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from threatening to misuse actual power. Compare Restatement §§ 6 and 8. Because supervisory harassment cases involve misuse of actual power, not the false impression of its existence, apparent authority analysis is inappropriate. When a party seeks to impose vicarious liability based on an agent's misuse of delegated authority, the Restatement's aided in the agency relation rule provides the appropriate analysis. P. 14. •f) That rule requires the existence of something more than the employment relation itself because, in a sense, most workplace tortfeasors, whether supervisors or co-workers, are aided in accomplishing .their tortious objective by the employment relation: Proximity and regular contact afford a captive pool of potential victims. Such an additional aid exists when a supervisor subjects a subordinate to a [*8) significant, tangible employment action, i.e., a significant change in employment status, such as discharge, demotion, or undesirable reassignment. Every Federal Court of Appeals to have considered the question has correctly found vicarious liability in that circumstance. This Court imports the significant, tangible employment action concept for resolution of the vicarious liability issue considered here. An employer is therefore subject to vicarious liability for such actions. However, where, as here, there is no tangible employment action, it is not obvious the agency relationship aids in commission of the tort. Moreover, Meritor holds that agency principles constrain the imposition of employer liability for supervisor harassment. Limiting employer liability is also consistent with Title VIPs purpose to the extent it would encourage the creation and use of anti-harassment policies and grievance procedures. Thus, in order to accommodate the agency principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VIPs equally basic policies of encouraging forethought by employers and saving action by objecting employees, the Court adopts, [*9] in this. case and in Faragher v. Boca Raton, post, p. _, the following holding: 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 ~iability 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 LIXIS•NEX1S ~ LIXiS~NEXLS j~ LEXIS• NEXLS' 1998 U.S. LEXIS 4217, *9 Page 6 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 a 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 [*10] the corresponding obligation of reasonable care to avoid harm is not limited to showing any 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. Pp. 15-20. (g) Given the Court's explanation that the labels quid pro quo and hostile work environment are not controlling for employer-liability purposes, Ellerth should have an adequate opportunity on remand to prove she has a claim which would result in vicarious liability. Although she has not alleged she suffered a tangible employment action at Slowik's hands, which would deprive Burlington of the affirmative defense, this is not dispositive. In light of the Court's decision, Burlington is still subject to vicarious liability for Slowik's activity, but should have an opportunity to assert and prove the affirmative defense. Pp. 20-21. 123 F.3d 490, affirmed. JUDGES: KENNEDY, J., delivered the opinion of the Court, in which REHNQIIIST, C. J., and STEVENS, O'CONNOR, [*11] SOUTER, and BREYER, JJ., joined. GINSBURG, J., filed an opinion concurring in the judgment. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. OPINIONBY: KENNEDY OPINION: JUSTICE KENNEDY delivered the opinion of the Court. we decide whether, under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions. I Summary judgment was granted for the employer, so we must take the facts alleged by the employee to be true. United States v. Diebold, Iac. 369 U. S. 654, 655 (1962) (per curiam). The employer is Burlington Industries, the petitioner. The employee is Kimberly Ellerth, the respondent. From March 1993 until May 1994, Ellerth worked as a salesperson in one of Burlington's divisions in Chicago, Illinois. During her employment, she alleges, she was subjected to constant sexual harassment by her supervisor, one Ted Slowik. • In the hierarchy of Burlington's management [*12] structure, Slowik was a mid-level manager. Burlington has eight divisions, employing more than 22,000 / TM LEX1S ~ NEXT ' ~ TM LEXIS ~ ~ ~ { % NEX1S ~ LEX1S NEXLS rneenbQ a the Rced Elaeviu plc 6a+P ~A manLer a the Rced ELevur Pk 9aP ~ ~ A nwn6er iti .k Real Ciw:e. ..4 ....~.. 1998 U.S. LEXIS 4217, *12 Page 7 ~eople in some 50 plants around the United States. Slowik was a vice president - in one of five business units within one of the divisions. Ae had authority to make hiring and promotion decisions subject to the approval of his supervisor, .who signed the paperwork. See 912 F. Supp. 2101, 1119, a. 14 (ND I11. 2996). According to Slowik's supervisor, his position was "not considered an upper-level management position," and he was "not amongst the decision-making or policy-making hierarchy." Ibid. Slowik was not Ellerth's immediate supervisor. Ellerth worked in a two-person office in Chicago, and she answered to her office colleague, who in turn answered to Slowik in New York. Against a background of repeated boorish and offensive remarks and gestures which Slowik allegedly made, Ellerth places particular emphasis on three alleged incidents where Slowik's comments could be construed as threats to deny her tangible job benefits. In the summer of 1993, while on a business trip, Slowik invited Ellerth to the hotel lounge, an invitation Ellerth felt compelled to accept because Slowik was [*13] her boss. App. 155. When Ellerth gave no encouragement to remarks Slowik made about her breasts, he told her to "loosen up" and warned, "you know, Rim, I could make your life very hard or very easy at Burlington." Id., at 156. In March 1994, when Ellerth was being considered for a promotion, Slowik expressed reservations during the promotion interview because she was not "loose enough." Id., at 159. The comment was followed by his reaching over and rubbing her knee. Ibid. Ellerth did receive the promotion; but when Slowik called to announce it, he told Ellerth, "you're gonna be out there with men who work in • factories, and they certainly like, women with pretty butts/legs." Id., at 159-160. In May 1994, Ellerth called Slowik, asking permission to insert a customer's logo into a fabric sample. Slowik responded, "I don't have time for you right now, Rim -- unless you want to tell me what you're wearing." Id., at 78. Ellerth told Slowik she had to go and ended the call. Ibid. A day or two later, Ellerth called Slowik to ask permission again. This time he denied her request, but added something along the lines of, "are you wearing shorter skirts yet, Kim, because [*14] it would make your job a whole heck of a lot easier." Id., at 79. A short time later, Ellerth's immediate supervisor cautioned her about returning telephone calls to customers in a prompt fashion. 912 F. Supp , at 1109. In response, Ellerth quit. She faxed a letter giving reasons unrelated. to the alleged sexual harassment we have described. Ibid. About three weeks later, however, she sent a letter explaining she quit because of Slowik's behavior. Ibid. During her tenure at Burlington, Ellerth did not inform anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. Ibid. In fact, she chose not to inform her immediate supervisor (not Slowik) because "'it would be his duty as my supervisor to report any incidents of sexual harassment.'" Ibid. On one occasion, she told Slowik a comment he made was inappropriate. Ibid. In October 1994, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), Ellerth filed suit in the United States District Court for the Northern District of Illinois, alleging Burlington TM LEXLS ~ NEX1S' % TM LEXIS ~ NEX1S' %~TM LEXIS ~ NEX1S' 1998 U.S. LEXIS 4217, *14 Page 8 engaged in sexual harassment and forced her constructive discharge, [*15] -in violation of Title VII. The District Court granted summary judgment to Burlington. The Court found Slowik's behavior, as described by Ellerth, severe and pervasive enough to create a hostile work environment, but found Burlington neither knew nor should have known about the conduct. There was no triable issue of fact on the latter point, and the Court noted Ellerth had not used Burlington's internal complaint procedures. Id., at 1118. Although Ellerth's claim was framed as a hostile work environment complaint, the District Court observed there was a quid pro quo "component" to the hostile environment. Id., at 1121. Proceeding from the premise that an employer faces vicarious liability for `quid pro quo harassment, the District Court thought it necessary to apply a negligence standard because the quid pro quo merely contributed to the hostile work environment. See id., at 1123. The District Court also dismissed Ellerth's constructive discharge claim. The Court of Appeals en banc reversed in a decision which produced eight separate opinions and no consensus for a controlling rationale. The judges were able to agree on the problem they confronted: Vicarious [*16] liability, not failure to comply with a duty of care, was the essence of Ellerth's case against Burlington on appeal. The judges seemed to agree Ellerth could recover if Slowik's unfulfilled threats to deny her tangible job benefits was sufficient to impose vicarious liability on Burlington. Jansen v. Packing Corp. of America, 123 F.3d 490, 494 (CA7 2997) (per curiam). With the exception of Judges Coffey and Easterbrook, the judges also agreed Ellerth's claim could be categorized as one of quid pro quo harassment, even though she had received the promotion and had suffered no other tangible retaliation. Ibid. The consensus disintegrated on the standard for an employer's liability for such a claim. Six judges, Judges Flaum, Cummings, Bauer, Evans, Rovner, and Diane P. Wood, agreed the proper standard was vicarious liability, and so Ellerth could recover even though Burlington was not negligent. Ibid. They had different reasons for the conclusion. According to Judges Flaum, Cummings, Bauer, and Evans, whether a claim involves a quid pro quo determines whether vicarious liability applies; and they in turn defined quid pro quo to include a supervisor's [*17] threat to inflict a tangible job injury whether or not it was completed. Id., at 499. Judges Wood and Rovner interpreted agency principles to impose vicarious liability on employers for most claims of supervisor sexual harassment, even absent a quid pro quo. Id., at 565. Although Judge Easterbrook did not think Ellerth had stated a quid pro quo claim, he would have followed the law of the controlling State to determine the employer's liability, and by this standard, the employer would be liable here. Id., at 552. In contrast, Judge Kanne said Ellerth had stated a quid pro quo claim, but negligence was the appropriate standard of liability when the quid pro quo involved threats only. Id., at 505. Chief Judge Posner, joined by Judge Manion, disagreed. He asserted Ellerth could not recover against Burlington despite having stated a quid pro quo claim. According to Chief Judge Posner, an employer is subject to vicarious liability for "acts that significantly alter the terms or conditions of employment," or "company acts." Id., at 515. In the emergent terminology, an unfulfilled quid pro quo is a mere threat to do a company act rather than the [*18] act itself, and in these circumstances, an employer can be found liable for its negligence only. Ibid. Chief Judge Posner also found Ellerth failed to create a LEX1S ~ NEXIS' % ~ LEX1S ~ NEXIS' % TM ~ LEXIS NEXLS -~.1 member of she Rc<d Elsevier plc Fo~P '~,1 manber of the Rc<d Elsevier Pk poop ~ ,Q .... - ._ ~ .., w.. ..c .~_ e.~ n._'_ _i. Page 9 1948 U.S. LEXIS 4217, *18 ~iable issue of fact as to Burlington's negligence. Id., at 517. Judge Coffey rejected all of the above approaches because he favored a uniform standard of negligence in almost all sexual harassment cases. Id., at 518. The disagreement revealed in the careful opinions of the judges of the Court of Appeals reflects the fact that Congress has left it to the courts to determine controlling agency law principles in a new and difficult area of federal law. We granted certiorari to assist in defining the relevant standards of employer liability. 522 II.S. _ (1998). II At the outset, we assume an important proposition yet to be established before a trier of fact. It is a premise assumed as well, in explicit or implicit terms, in the various opinions by the judges of the Court of Appeals. The premise is: a trier of fact could find in Slowik's remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. The threats, however, were not carried out or fulfilled. Cases based on threats which [*19~ are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or ~re absent altogether, but beyond this are of limited utility. Section 703 (a) of Title VII forbids "an employer- "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's sex." 42 D.S.C. § 2000e-2(a) (1) . "Quid pro quo" and "hostile work environment" do not apgear in the statutory text. The terms appeared first in the academic literature, see C. MacKinnon, Sexual Harassment of Working Women (1979); found their way into decisions of the Courts of Appeals, see, e.g., Henson v. Dundee, 682 F.2d 897, 909 (CAI1 1982); and were mentioned in this Court's decision in Meritor.Sav3ngs Ban1c, FSB v. Vinsoa, 477 O.S. (*20j 57 (1986). See generally B. Scalia, The Strange Career of Quid Pro Quo Sexual Harassment, 21 Hare. J. L. & Pub. Policy 307 (1998) . In Meritor, the terms served a specific and limited purpose. There we considered whether the conduct in question constituted discrimination in the terms or conditions of employment in violation of Title VII. We assumed, and with adequate reason, that if an employer demanded sexual favors from an employee in return for a job benefit, discrimination with respect to terms or conditions of employment was explicit. Less obvious was whether an employer's ~aexually demeaning behavior altered terms or conditions of employment in violation of Title VII. We distinguished between quid pro quo claims and hostile environment claims, see 477 U. S., at 65, and said both were cognizable under LEX1S ~ NIXIS' ~~ LIXIS• NEX1S ~~ LEX1S• NIX1S 1998 U.S. LEXIS 4217, *20 Page 10 Title VII, though the latter requires harassment that is severe or pervasive. . Ibid. The principal significance of the distinction is to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive. The distinction was not discussed for its bearing upon (*21J an employer's liability for an employee's discrimination. On this question Meritor held, with no further specifics, that agency principles controlled. Id., at 72. Nevertheless, as use of the terms grew in the wake of Meritor, they acquired their owa significance. The standard of employer responsibility turned on which type of harassment occurred. If the plaintiff established a quid pro quo claim, the Courts of Appeals held, the employer was subject to vicarious liability. See Davis v. Sioux City, 115 F.3d 1365, 1367 (CAB 1997); Nichols v. Frank, 42 F.3d 503, 513-514 (CA9 1994); Bouton v. BMW of North America, Inc., 29 F.3d 103, 106-107 (CA3 1994); Sauers v. Salt Lake Couaty, 1 F.3d 1122, 1127 (CA10 1993); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 185-186 (CA6), cert. denied, 506 U. S. 2041 (1992); Steele v. Offshore Shipbuilding, Inc., 867 F.2d I3I1, 1316 (CAI1 2989). The rule encouraged Title VII plaintiffs to state their claims as quid pro quo claims, which in turn put expansive pressure on the definition. The equivalence of the quid pro quo label and vicarious liability is illustrated by this case. The [*22] question presented on certiorari is whether Ellerth can state a claim of quid pro quo harassment, but the issue of real concern to the parties is whether Burlington has vicarious liability for Slowik's alleged misconduct, rather than liability limited to its own negligence. The question presented for certiorari asks: "Whether a claim of quid pro quo sexual harassment may be stated under Title VII where the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered any tangible effects on the compensation, terms, conditions or privileges of employment as a consequence of a refusal to submit to those advances?" Pet. for Cert. i. We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he [*23] or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive. Because Ellerth's claim involves only unfulfilled threats, it should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. _, _ (1998) (slip op., at 6); Harris v. Forklift Systems, Inc., 510 U.S. 17, 2I (I993). For purposes of this case, we accept the District Court's finding that the alleged conduct was severe or pervasive. See supra, at 3. The case before us involves numerous alleged threats, and we express no opinion as to whether a single unfulfilled threat is sufficient to constitute discrimination in the terms or conditions of employment. When we assume discrimination can be proved, however, the factors we discuss below, and not the categories quid pro quo and hostile work environment, will be ~ TM LEX1S ~ NEX1S' ~ ~ LEXIS ~ NEX1S' % ~ LEXIS ~ NEXLS' ., nwnbcr « the Rcoa Elaevia I< P 4~7 ~.1 n+cnber ai she Rccd Elscric pk BaP ~ A manber aF the Rced CI...~:c is n P ~P 1998 U.S. LEXIS 4217, *23 Page 11 controlling on the issue of vicarious liability. That is the question [*24] we must resolve. ZII We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat. We turn to principles of agency law, for the term "employer" is defined under Title VIZ to include "agents." 42 U.S.C. § 2000e(b); see Meritor, supra, at 72. In express terms, Congress has directed federal courts to interpret Title VII based on agency principles. Given such an explicit instruction, we conclude a uniform and predictable standard must be established as a matter of federal law. We rely "on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms." Community for Creative Non-Violence v. Reid, 490 U. S. 730, 740 (1989). The resulting federal rule, based on a body of case law developed over time, is statutory interpretation pursuant to congressional direction. This is not federal common law in "the strictest sense, i.e., a rule of decision that amounts, not simply to an interpretation of a federal statute ., but, rather, [*25] to the judicial 'creation' of a special federal rule of decision." Atherton v. FDIC, 519 U. S. 213, 218 (1997). State court decisions, applying state employment disczimination law, may be instructive in applying general agency principles, but, it is interesting to note, in many cases their determinations of employer liability under state. law rely in large part on • federal court decisions under Title VII. E.g., Arizona v. Schallock, 189 Ariz. 250, 259, 941 P. 2d I275, 1284 (1997); Lehmann v. Toys 'R' Us, Inc., 132 N. J. 587, 622, 626 A. 2d 445, 463 (1993); Thompson v. Berta Enterprises, Inc., 72 Wash. App. 531, 537-539, 864 P. 2d 983, 986-988 (1994). As Meritor acknowledged, the Restatement (Second) of Agency (1957) (hereinafter Restatement), is a useful beginning point for a discussion of general agency principles. 477 U. S., at 72. Since our decision in Meritor, federal courts have explored agency principles, and we find useful instruction in their decisions, noting that "common-law principles may not be transferable in all their particulars to Title VII." Ibid. The EEOC has issued Guidelines governing sexual harassment claims under Title [*26] VII, but they provide little guidance on the issue of employer liability for supervisor harassment. See 29 CFR § 1604.11 (c) (1997) (vicarious liability for supervisor harassment turns on "the particular employment relationship and the job functions performed by the individual"). A Section 219(1) of the Restatement sets out a central principle of agency law: "A master is subject to liability for the torts of his servants committed while acting in the scope of their employment." An employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment. Sexual harassment . under Title VII presupposes intentional conduct. while early decisions absolved employers of liability for the intentional torts of their employees, the law now imposes liability where the employee's "purpose, however misguided, is wholly or n LEXIS ~ NEX1S' l TM LDCIS ~ NEXIS' % ~ LEXIS ~ NEXIS' Page 12 1998 U.S. LEXIS 4217, *26 in part to further the master's business." w. Keeton, D. Dobbs, R. Keeton, & D.- Owen, Prosser and Keeton on Law of Torts § 70, p. 505 (5th ed. 1984) (hereinafter Prosser and Keeton on Torts). In applying scope of employment principles to intentional torts, however, it is accepted that "it is less likely that a willful [*27] tort will properly be held to be in the course of employment and that the liability of the master for such torts will naturally be more limited." F. Mechem, Outlines of the Law of Agency § 394, p. 266 (P. Mechem 4th ed., 1952). The Restatement defines conduct, including an intentional tort, to be within the scope of employment when "actuated, at least in part, by a purpose to serve the [employer]," even if it is forbidden by the employer. Restatement §§ 228(1)(c), 230. For example, when a salesperson lies to a customer to make a sale, the tortious conduct is within the scope of employment because it benefits the employer by increasing sales, even though it may violate the employer's policies. See Prosser and Keeton on Torts § 70, at 505-506. As Courts of Appeals have recognized, a supervisor acting out of gender-based animus or a desire to fulfill sexual urges may not be actuated by a purpose to serve the employer. See, e.g., Harrison v. Eddy Potash, Inc., 112 F.3d 2437, 1444 (CA10 1997), cert. pending, No. 97-232; Torres v. Pisano, 116 F.3d 625, 634, n. 10 (CA2 2997). But see Kauffman v. Allied Signal, Inc., 970 F.2d at I84-i85 (holding harassing supervisor [*28] acted within scope of employment, but employer was not liable because of its quick and effective remediation). The harassing supervisor often acts for personal motives, motives unrelated and even antithetical to the objectives of the employer. Cf. Mechem, supra, § 368 ("for the time being [the supervisor] is conspicuously and unmistakably seeking a personal end"); see also Restatement § 235, Illustration 2 (tort committed while "acting purely from personal ill will" not within the scope of employment); § 235, Illustration 3 (tort committed in retaliation for failing to pay the employee a bribe not within the scope of employment). There are instances, of course, where a supervisor engages in unlawful discrimination with the purpose, mistaken or otherwise, to serve the employer. E.g., Sims v. Montgomery County Comm'n, 766 F. Supp. 1052, 1075 (14ID AIa. 1990) isupervisor acting in scope of employment where employer has a policy of discouraging women from seeking advancement and "sexual harassment was simply a way of furthering that policy"). The concept of scope of employment has not always been construed to require a motive to serve the employer. E.g., Ira S. (*29J Bushey & Sons, Inc. v. United States, 398 F.2d I67, 172 (CA2 1968). Federal courts have nonetheless found similar limitations on employer liability when applying the agency laws of the States under the Federal Tort Claims Act, which makes the Federal Government liable for torts committed by employees within the scope of employment. 28 U.S.C. § I346(b); see, e.g., Jamison v. Wiley, 14 F.3d 222, 237 (CA4 2994) (supervisor's unfair criticism of subordinate's work in retaliation for rejecting his sexual advances not within scope of employment); Wood v. United States, 995 F.2d 1122, 1123 (CA1 1993) {greyer, C. J.) (sexual harassment amounting to assault and battery "clearly outside the scope of employment"); see also 2 L. Jayson & R. Longstreth, Handling Federal Tort Claims § 9.07[4], p. 9-211 (1998). The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. B LEX1S ~ NEXIS' ~ ~ LEX1S ~ NEXIS' % ~ L S EXI NIXLS ~\ member of the Reed Elaev~er pic gwP ~A monber or she Rced Elsener pic qwP ~ -Q. ~ ,......~... eti rw R..A FI...~:....1......... 1998 U.S. LEXIS 4217, *29 Page 13 Scope of employment does not define the only basis for employer liability under agency principles. In limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment. The principles [*30l are set forth in the much-cited § 219(2) of the Restatement: "(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: "(a) the master intended the conduct or the consequences, or "(b) the master was negligent or reckless, or "(c) the conduct violated a non-delegable duty of the master, or "(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation." See also § 219, Comment a (Section 219(2) "enumerates the situations in which a master may be liable for torts of servants acting solely for their own purposes and hence not in the scope of employment°). Subsection (a) addresses direct liability, where the employer acts with tortious intent, and indirect liability, where the agent's high rank in the ~ompany makes him or her the employer's alter ego. None of the parties contend lowik's rank imputes liability under this principle. There is no contention, furthermore, that a nondelegable duty is involved. See § 219(2)(c). So, for our purposes here, subsections (a) and [*31] (c) can be put aside. Subsections (b) and (d) are possible grounds for imposing employer liability on account of a supervisor's acts and must be considered. IInder subsection (b), an employer is liable when the tort is attributable to the employer's own negligence. § 219(2)(b). Thus, although a supervisor's sexual harassment is outside the scope of employment because the conduct was for personal motives, an employer can be liable, nonetheless, where its own negligence is a cause of the harassment. Aa employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII; but Ellerth seeks to invoke the more stringent standard of vicarious liability. Subsection 219(2)(d) concerns vicarious liability for intentional torts committed by an employee when the employee uses apparent authority (the apparent authority standard), or when the employee "was aided in accomplishing the tort by the existence of the agency relation" (the aided in the agency relation standard). Ibid. As other federal decisions have done in discussing vicarious liability for supervisor [*32] harassment, e.g. Xenson v. Dundee, 682 F.2d 897, 909 (CA1I 2982), we begin with § 219(2)(d). C As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinc t from whe re the agent threatens to misuse actual power. Compare Restatement § 6 (defining "power") TM LEXIS'• NEXIS' ~ ~ LEXIS ~ NEXLS' i n LEXIS ~ NEXLS' I~ , ~._. _:......e ri....:.. ,.i......._ .~? w Derr .,: r~,. n..w ei.-.:_ _;_ ......_ ~ a ene'nMr .i rMe Rerd Flrevie elc na~D Page 14 1998 U.S. LEXIS 4217, *32 with § 8 (defining "apparent authority"). In the usual case, a supervisor's _ harassment involves misuse of actual power, not the false impression of its existence. Apparent authority analysis therefore is inappropriate in this context. If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one. Restatement § e, Comment c {"Apparent authority exists only to the extent it is reasonable for the third person dealing with the agent to believe that the agent is authorized"). When a party seeks to impose vicarious liability based on an agent's misuse of delegated authority, the Restatement's aided in the agency relation rule, rather than the apparent authority rule, appears to be the appropriate form of analysis. D We (*33J turn to the aided in the agency relation standard. In a sense, most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation: Proximity and regular contact may afford a captive pool of potential victims. See Gary v. Long, 59 F.3d 1392, 1397 (CADC 1995). Were this to satisfy the aided in the agency relation standard, an employer would be subject to vicarious liability not only for all supervisor harassment, but also for all co-worker harassment, a result enforced by neither the EEOC nor any court of appeals to have considered the issue. See, e.g., Blankenship v. Parke Care Centers, Inc., I23 F.3d 868, 872 (CA6 1997), cert. denied, 522 U.S. _ (1998) (sex discrimination); McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 480 (CA7 1996) (sex discrimination); Daniels v. Essex Group, Inc., 937 F.2d 2264, 2273 (CA7 1991) (race discrimination); see also 29 CFR 1604.11 (d) (1997) ("knows or should have known" standard of liability for cases of harassment between "fellow employees"). The aided in the agency relation standard, therefore, requires the existence of something more than the employment relation [*34] itself. At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate. Every Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action. See, e.g., Sauers v. Salt Lake County, Z F.3d 1122, 1127 (CA10 1993) ("'If the plaintiff can show that she suffered an economic injury from her supervisor's actions, the employer becomes strictly liable without any further showing .'"). In Meritor, we acknowledged this consensus. See 477 [T. S., at 70-71 ("The courts have consistently. held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew, or should have known, or approved of the supervisor's actions"). Although few courts have elaborated how agency principles support this rule, we think it reflects a correct application of the aided in the agency relation standard. In the context of this case, a tangible employment action would have taken [*35] the form of a, denial of a raise or a promotion. The concept of a tangible employment action appears in numerous cases in the Courts of Appeals discussing claims involving race, age, and national origin discrimination, as well as sex discrimination. Without endorsing the specific results of those decisions, we 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 LEX1S ~ NEX1S' % TM LEXIS ~ NEXIS' % TM ~ ' LEX1S NEXLS ~A member a the Rced Eltevicr pk 9o'+P ~A mmtbct of the Rced FJsevier pic poop ~ A member aF the '~ Reed Etsenc Plc poop •~ ~ Page 15 1998 U.S. LEXIS 4217, *35 atus, such as hiring, firing, failing to promote, reassignment with _ ignificantly different responsibilities, or a decision causing a significant change in benefits. Compare Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132, 136 (CA7 2993) ("A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a Less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation"), with Flaherty v. Gas Research Institute, 31 F.3d 45I, 456 (CA7 2994) (a "bruised ego" is not enough); [*36] Rocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887 (CA6 1996) (demotion without change in pay, benefits, duties, or prestige insufficient) and Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (CA8 1994) (reassignment to more inconvenient job insufficient) . When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation. A tangible employment action in most cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury. A co-worker can break a co-worker's arm as easily as a supervisor, and anyone who has regular contact with an employee can inflict psychological injuries by his or her offensive conduct. See Gary, 59 F.3d at 1397; Henson, 682 F.2d at 910; Barges v. Costle, 56I F.2d 983, 996 (CADC 1977) (MacKinnon, J., concurring). But one co-worker (absent some elaborate scheme) cannot dock another's pay, nor can one co-worker demote another. Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the [*37] company as a distinct class of agent to make economic decisions affecting other employees under his or her control. Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. E.g., Shager v. Upjohn Co., 913 F.2d 398, 405 (CA7 1990) (noting that the supervisor did not fire plaintiff; rather, the Career Path Committee did, but the employer was still liable because the Committee functioned as the supervisor's "cat's-paw"). The supervisor often must obtain the imprimatur of the enterprise and use its internal processes. See Botcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (CA2 1992) ("From the perspective of the employee, the supervisor and the employer merge into a single-entity"). For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. Whatever the exact contours of the aided in the agency [*38] relation standard, its requirements will always be met when a supervisor takes a tangible employment action against a subordinate. In that instance, it would be implausible to interpret agency principles to allow an employer to escape liability, as Meritor itself appeared to acknowledge. See, supra, at 15. Whether the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action is less obvious. Application of the standard is made difficult by its malleable terminology, which can be read to either expand or limit liability in the context of supervisor ~ TM LEXIS ~ NEXIS' % ~ LEXIS ~ NEXIS' ~ % ~ LEX1S ~ NEXIS' ~. ..\ maehrr H rM Reef Fl.ev:er ele em~e K. A mee6er e1 ehe Reed Elre.:.r wl~ ........ -!!. A Ine.nl.er ..C.b Reed Flw:w nie een,n .1998 U.S. LEXIS 4217, *38 Page 16 harassment. On the one hand, a supervisor's power and authority invests his or_ her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation. See Meritor, 477 U. S., at 77 (Marshall, J., concurring in judgment) ("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, there are acts of harassment a supervisor might commit which might be the same acts a co-employee would [*39) commit, and there may be some circumstances where the supervisor's status makes little difference. It is this tension which, we think, has caused so much confusion among the Courts of Appeals which have sought to apply the aided in the agency relation standard to Title VIZ cases. The aided in the agency relation standard, however, is a developing feature of agency law, and we hesitate to render a definitive explanation of our understanding of the standard in an area where other important considerations must affect our judgment. In particular, we are bound by our holding in Meritor that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment. See Meritor, supra, at 72 ("Congress' decision to define 'employer' to include any 'agent' of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible"). Congress has not altered Meritor's rule even though it has made significant amendments to Title VII in the interim. See Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977) ("We must bear in mind that considerations [*40] of stare decisis weigh heavily in the area of statutory construction, where ,Congress is free to change this Court's interpretation of its legislation"). Although Meritor suggested the limitation on employer liability stemmed from agency principles, the Court acknowledged other considerations might be relevant as well. See, 477 U. S., at 72 ("common-law principles may not be transferable in all their particulars to Title VII"). For example, Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Were employer liability to depend in part on an employer's effort to create such procedures, it would effect Congress' intention to promote conciliation rather than litigation in the Title VII context, see EEOC v. She11 Oil Co., 466 U. S. 54, 77 (2984), and the EEOC's policy of encouraging the development of grievance procedures. See 29 CFR § 1604.11(f) (1997); EEOC Policy Guidance on Sexual Harassment, 8 BNA FEP Manual 405:6699 (Mar. 19, 1990). To the extent limiting employer liability could encourage employees to report. harassing conduct before it becomes severe or pervasive, it would also serve Title VIPs deterrent purpose. [*41] See McKennon v. Nashville Banner Publishing Co., 513 U. S. 352, 358 (2995). As we have observed, Title VII borrows from tort law the avoidable consequences doctrine, see Ford Motor Co. v. EEOC, 458 U. S. 219, 231, a. ZS (1982), and the considerations which animate that doctrine would also support the limitation of employer liability in certain circumstances. In order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VIPs equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Faragher v. Boca Raton, post, 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. y LEXIS ~ NEXIS' % TM LEX1S ~ NEXIS' { % ~ LEXIS NEXIS '& me,nbv w the Reed Elee.ia plc ~P ~1 mcmbcr a [he Reed Eluvi<r plc poop ~.1 metnbcr of the Rted Elfeviet plc poop ' Page 17 .. 1998 U.S. LEXIS 4217, *41 en no tangible employment action is taken, a defending employer may raise an ~firmative 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 [*42] 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 anti-harassment 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 any 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. IV Relying on existing case law which held out the promise of vicarious liability [*43] for all quid pro quo claims, see supra, at 7, Ellerth focused all her attention in the Court of Appeals on proving her claim fit within that category. Given our explanation that the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability, • see supra, at 8, Ellerth should have an adequate opportunity to prove she has a claim for which Burlington is liable. Although Ellerth has not alleged she suffered a tangible employment action at the hands of Slowik, which would deprive Burlington of the availability of the affirmative defense, this is not dispositive. In light of our decision, Burlington is still subject to vicarious liability for Slowik's activity, but Burlington should have an opportunity to assert and prove the affirmative defense to liability. See supra, at 20-21. For these reasons, we will affirm the judgment of the Court of Appeals, reversing the grant of summary judgment against Ellerth. On remand, the District Court will have the opportunity to decide whether it would be appropriate to allow Ellerth to amend her pleading or supplement her discovery. The judgment of the Court of Appeals is [*44] affirmed. It is so ordered. CONCURBY: U.S. (1998) CONC[JR: JUSTICE GINSBURG, concurring in the judgment. I agree with the Court's ruling that "the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability." Ante, at 20-21. I also subscribe to the Court's statement of the rule governing employer liability, ante, at 20, which is substantively identical to the rule the Court adopts in Faragher v. Boca Raton, post, p. TM LEXIS'~ NEXIS' ~ ~ LEXIS ~ NEX1S' j~ ~ LEXIS ~ NEXIS' %~ /~ "[`i A mcmba of the Reed FJsevier pk goup ~_ A monber of the Reed Elsevier pk pwp ~A men6er of the Reed Elsevier pk BAP 1998 U.S. I FXiS 4217, *44 DISSENTBY: THOMAS DISSENT: JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting. Page 18 The Court today manufactures a rule that employers are vicariously liable if supervisors create a sexually hostile work environment, subject to an affirmative defense that the Court barely attempts to define. This rule applies even if the employer has a policy against sexual harassment, the employee knows about that policy, and the employee never informs anyone in a position of authority about the supervisor's conduct. As a result, employer liability under Title VII is judged by different standards depending upon whether a sexually or racially hostile work environment is alleged. The standard of employer liability [*45] should be the same in both instances: An employer should be liable if, and only if, the plaintiff proves that the employer was negligent in permitting the supervisor's conduct to occur. I Years before sexual harassment was recognized as "discrimination . because of sex," 42 U.S.C. § 2000e-2(a)(1), the Courts of Appeals considered whether, and when, a racially hostile work environment could violate Title VII. n1 In the landmark case Rogers v. EEOC, 454 F.2d 234 {1971), cert. denied, 406 U. S. 957 (1972), the Court of. Appeals for the Fifth Circuit held that the practice of racially segregating patients in a doctor's office could amount to discrimination in "'the terms, conditions, or privileges "' of employment, thereby violating Title VII. Id., at 238 .(quoting 42 U.S.C. § 2000e-2(a)(1)). The principal opinion in the case concluded that employment discrimination was not limited to the "isolated and distinguishable events" of "hiring, firing, and promoting." Id., at 238 (opinion of Goldberg, J.). Rather, Title VII could also be violated by a work environment "heavily polluted with discrimination," because of the deleterious effects of such an atmosphere on [*46] an employee's well-being. Ibid. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - nl This sequence of events is not surprising, given that the primary goal of the Civil Rights Act of 1964 was to eradicate race discrimination and that the statute's ban on sex discrimination was added as an eleventh-hour amendment in an effort to kill the bill. See Barnes v. Costle, 561 F.2d 983, 987 (CADC 1977). - - - - - - - - - - - - - - -End Footnotes- - - - - _ _ _ _ _ _ _ _ _ _ _ Accordingly, after Rogers, a plaintiff claiming employment discrimination based upon race could assert a claim for a racially hostile work environment, in addition to the classic claim of so-called "disparate treatment." A disparate treatment claim required a plaintiff to prove an adverse employment consequence and discriminatory intent by his employer. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 10-11 (3d ed. 1996). A hostile environment claim required the plaintiff to show that his work environment was so pervaded by racial harassment as to alter the terms and conditions of his employment. See, e.g., Sne11 v. Suffolk Cty. (*47J 782 F.2d 1094, 1103 (CA2 1986) ("To establish a hostile atmosphere, plaintiffs must prove more than a few isolated incidents of racial enmity"); Johnson v. Bunny Bread Co., 646 F.2d ,,, LEX1S ~ NEXIS' ~ ~ LEXIS ~ NEX1S' % TM LEXIS ~ NEX1S' A manbcr a J+c Rced Eluviv Ic P p~P ~.\ manber of she Rted Elsma pk poop ~ .\ rtvnber of the Rod ~~ Elaenc pk poop ' - Page 19 ~ 4 • .~ 1998 U.S. LEXIS 4217, *47 ~50, 2257 (CA8 2981) (no violation of Title VII from infrequent use of racial urs). This is the same standard now used when determining whether sexual harassment renders a work environment hostile. See Harris v. Forklift Systems, Inc., 510 U. S. 17, 2Z (1993) (actionable sexual harassment occurs when the workplace is "permeated with discriminatory intimidation, ridicule, and insult") (emphasis added) (internal quotation marks and citation omitted). In race discrimination cases, employer liability has turned on whether the plaintiff has alleged an adverse employment consequence, such as firing or demotion, or a hostile work environment. If a supervisor takes an adverse employment action because of race, causing the employee a tangible job detriment, the employer is vicariously liable for resulting damages. See ante, at 15. This is because such actions are company acts that can be performed only by the exercise of specific authority granted by the employer, and thus the supervisor [*48] acts as the employer. If, on the other hand, the employee alleges a racially hostile work environment, the employer is liable only for negligence: that is, only if the employer knew, or in the exercise of reasonable care should have known, about the harassment and failed to take remedial action. See, e.g., Dennis v. Cty. of Fairfax, 55 F.3d 151, 153 (CA4 1995); Davis v. Monsanto Chemical Co., 858 F.2d 345, 349 (CA6 1988), cert. denied, 490 U.S. 1220 (1989). Liability has thus been imposed only if the employer is blameworthy in some way. See, e.g., Davis v. Monsanto Chemical Co., supra, at 349; Sne11 v. Suffolk Cty., supra, at ZI04; DeGrace v. Rumsfeld, 614 F.2d 796, 805 (CA1 1980). This distinction applies with equal force in cases of sexual harassment. n2 When a supervisor inflicts an adverse employment consequence upon an .employee • who has rebuffed his advances, the supervisor exercises the specific authority granted to him by his company. His acts, therefore, are the company's acts and are properly chargeable to it. See 123 F.3d 490, 514 (1997) (Posner, C. J., dissenting); ante, at 17 ("Tangible employment actions fall within the special [*49~ province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control"). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 The Courts of Appeals relied on racial harassment cases when analyzing early claims of discrimination based upon a supervisor's sexual harassment. For example, when the Court of Appeals for the District Columbia Circuit held that a work environment poisoned by a supervisor's "sexually stereotyped insults and demeaning propositions" could itself violate Title VII, .its principal authority was Judge Goldberg's opinion in Rogers. See Bundy v. Jackson, 641 F.2d 934, 944, (CADC 1981); see also Henson v. Dundee, 682 F.2d 897, 901 (CAII 1982). So too, this Court relied on Rogers when in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (2986), it recognized a cause of action under Title VII for sexual harassment. See id., at 65-66. _ _ _ _ _ _ _ _ _ _ _ _ _ _ - -End Footnotes- - - - - - - - - - - - - - - - - If a supervisor creates a hostile work environment, however, he does [*50l not act for the employer. As the Court concedes, a supervisor's creation of a hostile work environment is neither within the scope of his employment, nor part of his apparent authority. See ante, at 10-14. Indeed, a hostile work environment is antithetical to the interest of the employer. In such i TM LEX1S• NEXIS' ~ TM LEXIS • NEXIS' ~ ~ LEXIS ~ NEXLS' ~ % f A member aE the Reed Elsevier plc 6a+P ~.i member d the Aced Elsevier pk Oa+P -~A member of [he Reed Elsevier pk gttntp 1998 U.S. LEXIS 4217, *50 P::ge 20 circumstances, an employer should be liable only if it has been negligent. That is, liability should attach only if the employer either knew, or in the exercise of reasonable care should have known, about the hostile work environment and failed to take remedial action. n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n3 I agree with the Court that the doctrine of quid pro quo sexual harassment is irrelevant to the issue of an employer's vicarious liability. I do not, however, agree that the distinction between hostile work environment and quid pro quo sexual harassment is relevant "when there is a threshold question. whether a plaintiff can prove discrimination in violation of Title VII." Ante, at 8. A supervisor's threat to take adverse action against an employee who refuses his sexual demands, if never carried out, may create a hostile work environment, but that is all. Cases involving such threats, without more, should therefore be analyzed as hostile work environment cases only. If, on the other hand, the supervisor carries out his threat and causes the plaintiff a job detriment, the plaintiff may have a disparate treatment claim under Title VII. See E. Scalia, The Strange Career of Quid Pro Quo Sexual Harassment, 21 Harv. J. L. & Pub. Policy 307, 309-314 (1998). - - - - - - - - - - - - - -End Footnotes- - - - - _ _ _ [*51] - - - - - - - - - Sexual harassment is simply not something that employers can wholly prevent without taking extraordinary measures--constant video and audio surveillance, for example--that would revolutionize the workplace in a manner incompatible with a free society. See 123 F.3d 490, 513 (Posner, C.J., dissenting). Indeed, such measures could not even detect incidents of harassment such as the comments Slowick allegedly made to respondent in a hotel bar. The most that employers can be charged with, therefore, is a duty to act reasonably under the circumstances. As one court recognized in addressing an early racial harassment claim: "It may not always be within an employer's power to guarantee an environment free from all bigotry. He can let it be known, however, that racial harassment will not be tolerated, and he can take all reasonable measures to enforce this policy. But once an employer has in good faith taken those measures which are both feasible and reasonable under the circumstances to combat the offensive conduct we do not think he can be charged with discriminating on the basis of race." De Grace v. Rumsfeld, 614 F.2d 796, 805 (1980) . Under a negligence standard, [*52] Burlington cannot be held liable for Slowick's conduct. Although respondent alleged a hostile work environment, she never contended that Burlington had been negligent in permitting the harassment to occur, and there is no question that Burlington acted reasonably under the circumstances. The company had a policy against sexual harassment, and respondent admitted that she was aware of the policy but nonetheless failed to tell anyone with authority over~Slowick about his behavior. See, ante, at 3. Burlington therefore cannot be charged with knowledge of Slowick's alleged harassment or with a failure to exercise reasonable care in not knowing about it. II / TM LEXIS ~ NEXIS' % ~ LEXIS ~ N % ~ • EX1S ~ LEXIS NEXIS ~.1 manbu of the Recd Elsevier pk gaup ~A nrmber of the Recd El+eria pk gwp -~A mrrnbcr aF the Reed Elsevic Pk goup .' ., 1998 U.S. LEXIS 4217, *52 Page 21 Rejecting a negligence standard, the Court instead imposes a rule of vicarious employer liability, subject to a vague affirmative defense, for the acts of supervisors who wield no delegated authority in creating a hostile work environment. This rule is a whole-cloth creation that draws no support from the legal principles on which the Court claims it is based. Compounding its error, the Court fails to explain how employers can rely upon the affirmative defense, thus ensuring a continuing reign of confusion in this important area [*53] of the law. In justifying its holding, the Court refers to our comment in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), that the lower courts should look to "agency principles^ for guidance in determining the scope of employer liability, id., at 72. The Court then interprets the term "agency principles" to mean the Restatement (Second) of Agency (1957). The Court finds two portions of the Restatement to be relevant: § 219(2)(b), which provides that a master is liable for his servant's torts if the master is reckless or negligent, and § 219(2)(d), which states that a master is liable for his servant's torts when the servant is "aided in accomplishing the tort by the existence of the agency relation." The Court appears to reason that a supervisor is "aided by . . the agency relation" in creating a hostile work environment because the supervisor's "power and authority invests his or her harassing conduct with a particular threatening character." Ante, at 18. Section 219(2)(d) of the Restatement grovides no basis whatsoever for imposing vicarious liability for a supervisor's creation of a hostile work environment. Contrary to the Court's suggestions, [*54] the principle embodied in § 219(2)(d) has nothing to do with a servant's "power and authority," nor with whether his actions appear "threatening." Rather, as demonstrated by the Restatement's illustrations, liability under § 219(2)(d) depends upon the plaintiff's belief that the agent acted in the ordinary course of business or within the scope of his apparent authority. n4 In this day and age, no sexually harassed employee can reasonably believe that a harassing supervisor is conducting the official business of the company or acting on its behalf. Indeed, the Court admits as much in demonstrating why sexual harassment is not committed within the scope of a supervisor's employment and is not part of his apparent authority. See ante, at 10-14. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 See Restatement § 219, Comment. e, § 261., Comment a (principal liable for an agent's fraud if "the agent's position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of business confided to him"); § 247, Illustrations (newspaper liable for a defamatory editorial published by editor for his own purposes). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*55] Thus although the Court implies that it has found guidance in both precedent and statute--see ante, at 9 ("The resulting federal rule, based on a body of case law developed over time, is statutory interpretation pursuant to congressional direction")--its holding is a product of willful policymaking, LEX1S ~ NEX1S' ~ ~ LEX1S~ NE~iS' ~ ~ LEX1S ~ NEXIS' I~ A tttanber ai the Reed Etsena plc gwp ~ manber d the Reed Flouter pic.gewp ~A mattbct d the Red Elsevtc p ~P 1998 U.S. LEXIS 4217, *55 Page '~2 pure and simple. The only agency principle that justifies imposing. employer liability in this context is the principle that a master will be liable for a servant's torts if the master was negligent or reckless in permitting them to occur; and as noted, under a negligence standard; Burlington cannot be held liable. See supra, at 5-6. The Court's decision is also in considerable tension with our holding in Meritor that employers are not strictly liable for a supervisor's sexual harassment. See Meritor Savings Bank, FSB v. Vinson, supra, at 72. Although the Court recognizes an affirmative defense--based solely on its divination of Title VIPs gestalt, see ante, at 19--it provides shockingly little guidance about how employers can actually avoid vicarious liability. Instead, it issues only Delphic pronouncements and leaves the dirty work to the lower courts: [*56] "While proof that an employer had promulgated an anti-harassment 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 any 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." Ante, at 20. What these statements mean for district courts ruling on motions for summary judgment--the critical question for employers now subject to the vicarious liability rule--remains a mystery. Moreover, employers will be liable notwithstanding the affirmative defense, even though they acted reasonably, so long as the plaintiff in question fulfilled her duty of reasonable care to avoid harm. See ibid. In practice, therefore, employer liability very well may be the rule. But as the Court acknowledges., this [*57] is the one result that it is clear Congress did not intend. See ante, at 18; Meritor Savings Bank, FSB v. Vinson, 477 U. S., at 72. The Court's holding does guarantee one result: There will be more and more litigation to clarify applicable legal rules in an area in which both practitioners and the courts have long been begging for guidance. It thus truly boggles the mind that the Court can claim that its holding will effect "Congress' intention to promote conciliation rather than litigation in the Title VII context." Ante, at 19. All in all, today's decision is an ironic result for a case .that generated eight separate opinions in the Court of Appeals on a' fundamental question, and in which we granted certiorari "to assist in defining the relevant standards of employer liability." Ante, at 5. * * * Popular misconceptions notwithstanding, sexual harassment is not a freestanding federal tort, but a form of employment discrimination. As such, it should be treated no differently (and certainly no better) than the other forms of harassment that are illegal under Title VII. I would restore parallel treatment of employer liability for racial and sexual harassment [*58] and hold an employer liable for a hostile work environment only if the employer is truly at fault. I therefore respectfully dissent. LEX1S ~ NEXIS' ~ ~ LEX1S ~ NEXIS' % ~ LEXIS ~ NEX1S' ~A manber of the Reed Elsevier plc poop ~~ manber of the Reed Elscvkr plc gouP ~A manber of the Rad Elsevier pk poop • ' , • 1ST CASE of Level 1 printed in FULL format. BETH ANN FARAGSSR, PETITIONER v. CITY OF BOCA RATON No. 97-282 SUPREME COURT OF THE UNITED STATES 1998 U.S. LEXIS 4216 June 26, 1998, Decided NOTICE: [*1] revision. This preliminary LEXIS version is unedited and subject to Page 24 The LEXIS pagination of this document is subject to change pending release of the final published version. PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. OPINION: JUSTICE SOUTER delivered the opinion of the Court. • This case calls for identification of the circumstances under which an employer may be held liable under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination. We hold 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 a plaintiff victim. I Between 1985 and 1990, while attending college, petitioner [*2] Beth Ann Faragher worked part time and during the summers as an ocean lifeguard for the Marine Safety Section of the Parks and Recreation Department of respondent, the City of Boca Raton, Florida (City?. During this period, Faragher's immediate supervisors were Bill Terry, David Silverman, and Robert Gordon. In June 1990, Faragher resigned. In 1992, Faragher brought an action against Terry, Silverman, and the City, asserting claims under Title VII, 42 U.S.C. § 1983, and Florida law. So far as it concerns the Title VII claim, the complaint alleged that Terry and Silverman created a "sexually hostile atmosphere" at the beach 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. The complaint contained specific allegations that Terry once said that he would never promote ~a woman to the rank of lieutenant, and that Silverman had said to Faragher, "Date me or clean the toilets for a year." Asserting that Terry and Silverman were agents of the City, and that their conduct amounted to discrimination in the "terms, conditions, and privileges" of her employment, 42 Q.S.C. § (*37 C A, C ~~ C A i C ~~~ i(' ('' 1998 U.S. LEXIS 4216, *3 Page 25 2000e-2(a)(1), Faragher sought a judgment against the City for nominal damages, costs, and attorney's fees. Following a bench trial, the IInited States District Court for the Southern District of Florida found that throughout Faragher's employment with the City, Terry served as Chief of the Marine Safety Division, with authority to hire new lifeguards (subject to the approval of higher management?, to supervise all aspects of the lifeguards' work assignments, to engage in counseling, to deliver oral reprimands, and to make a record of any such discipline. 864 F. Supp. 2552, 2563-1564 (1994). Silverman was a Marine Safety lieutenant from 1985 until June 1989, when he became a captain. Id., at 1555. Gordon began the employment period as a lieutenant and at some point was promoted to the position of training captain. In these positions, Silverman and Gordon were responsible for making the lifeguards' daily assignments, and for supervising their work and fitness training. Id., at 2564. The lifeguards and supervisors were stationed at the city beach and worked out of the Marine Safety Headquarters, a small one-story building containing an office, a meeting room, and a single, unisex [*4] locker room with a shower. Id., at 2556. Their work routine was structured in a "paramilitary configuration," id., at 1564, with a clear chain of command. Lifeguards reported to lieutenants and captains, who reported to Terry. He was supervised by the Recreation Superintendent, who in turn reported to a Director of Parks and Recreation, answerable to the City Manager. Id., at 1555. The lifeguards had no significant contact with higher city officials like the Recreation Superintendent. Id „ at 1564. In February 1986, the City adopted a sexual harassment policy, which it stated in a memorandum from the City Manager addressed to all employees. Id., at 1560. In May 1990, the City revised the policy and reissued a statement of it. Ibid. Although the City may actually have circulated the memos and statements to some employees, it completely failed to disseminate its policy among employees of the Marine Safety Section, with the result that Terry, Silverman, Gordon, and many lifeguards were unaware of it. Zbid. From time to time over the course of Faragher's tenure at the Marine Safety Section, between 4 and 6 of the 40 to 50 lifeguards were [*5] women. Id., at 1556. During that 5-year period, Terry repeatedly touched the bodies of female employees without invitation, ibid., would put his arm around Faragher, with his hand on her buttocks, id., at 2557, and once made contact with another female lifeguard in a motion of sexual simulation, id., at 1556. He made crudely demeaning references to women generally, id., at 2557, and once commented disparagingly on Faragher's shape, ibid. During a job interview with a woman he hired as a lifeguard, Terry said that the female lifeguards had sex with their male counterparts and asked whether she would do the same. Ibid. Silverman behaved in similar ways. He once tackled Faragher and remarked that, but for a physical characteristic he found unattractive, he would readily have had sexual relations with her. Ibid. Another time, he pantomimed an act of TM LEX1S• NEX1S' ~ ~ LEXIS'• NEX1S' % ~ LEXIS • NEXIS' l ~ ~ ~ ~ _ Page 26 1998 U.S. LEXIS 4216, *5 ~ral sex. Ibid. Within earshot of the female lifeguards, Silverman made frequent, vulgar references to women and sexual matters, commented on the bodies of female lifeguards and beachgoers, and at least twice told female lifeguards 'that he would like to engage in sex with them. Id., at 1557-1558. [*6] Faragher did not complain to higher management about Terry or Silverman. Although she spoke of their behavior to Gordon, she did not regard these discussions as formal complaints to a supervisor but as conversations with a person she held in high esteem. Id., at 1559. Other female lifeguards had similarly informal talks with Gordon, but because Gordon did not feel that it was his place to do so, he did not report these complaints to Terry, his own. supervisor, or to any other city official. Id., at 2559-1560. Gordon responded to the complaints of one lifeguard by saying that "the City just [doesn't] care." Id., at 1562. In April 1990, however, two months before Faragher's resignation, Nancy Ewanchew, a former lifeguard, wrote to Richard Bender, the City's Personnel Director, complaining that Terry and Silverman had harassed her and other female lifeguards. Id., at 1559. Following investigation of this complaint, the City found that Terry and Silverman had behaved improperly, reprimanded them, and required them to choose between a suspension without pay or the forfeiture of annual leave. Ibid. • On the basis of these findings, the District Court concluded [*7] that the conduct of Terry and Silverman was discriminatory harassment sufficiently serious to alter the conditions of Faragher's employment and constitute an abusive working environment. Id., at 1562-1563. The District Court then ruled that there were three justifications for holding the City liable for the harassment of its supervisory employees. First, the court noted that the harassment was pervasive enough to support an inference that the City had "knowledge, or constructive knowledge" of it, Id., at 1563. Next, it ruled that the City was liable under traditional agency principles because Terry and Silverman were acting as its agents when they committed the harassing acts. Id., at 1563-1564. Finally, the court observed that Cordon's knowledge of the harassment, combined with his inaction, "provides a further basis for imputing liability on [sic] the City." Id., at 1564. The District Court then awarded Faragher one dollar in nominal damages on her Title VII claim. Id., at 1564-1565. A panel of the Court of Appeals for the Eleventh Circuit reversed the judgment against the City. 76 F.3d 1155 (1996). Although the panel had "no trouble concluding that Terry's [*S] and Silverman's conduct was severe and pervasive enough to create an objectively abusive work environment," id., at 1162, it overturned the District Court's conclusion that the Gity was liable. The panel ruled that Terry and Silverman were not acting within the scope of their employment when they engaged in the harassment, id., at 1166, that they were not aided in their actions by the agency relationship, id., at 2166, n. 14, and that the City had no constructive knowledge of the harassment by virtue of ~ts pervasiveness or Cordon's actual knowledge, id., at 1167, and n. 16. In a 7-to-5 decision, the full Court of Appeals, sitting en banc, adopted the paael's conclusion. 111 F.3d 1530 (1997). Relying on our decision in Meritor /~~ LEX1S ~ NEXIS' %7~ LEXLS'• NEX1S' %%~~ LEXIS • NEXiS' Page 27 1998 U.S. LEXIS 4216, *8 Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), and on the Restatement (Second) of Agency § 219 (1957) (hereafter Restatement), the court held that "an employer may be indirectly liable for hostile environment sexual harassment by a superior: (1) if the harassment occurs within the scope of the superior's employment; (2) if the employer assigns performance of a nondelegable duty to a supervisor and an employee is injured because [*9] of the supervisor's failure to carry out that duty; or (3) if there is an agency relationship which aids the supervisor's ability or opportunity to harass his subordinate." Id., at 1534-1535. Applying these principles, the court rejected Faragher's Title VII claim against the City. First, invoking standard agency language to classify the harassment by each supervisor as a "frolic" unrelated to his authorized tasks, the court found that in harassing Faragher, Terry and Silverman were acting, outside of the scope of their employment and solely to further their own personal ends. Id., at 1536-1537. Next, the court determined that the supervisors' agency relationship with the City did not assist them in perpetrating their harassment. Id., at 1537. Though noting that "a supervisor is always aided in accomplishing hostile environment sexual harassment by the existence of the agency relationship with his employer because his responsibilities include close proximity to and regular contact with the victim," the court held that traditional agency law does not employ so broad a concept of aid as a predicate of employer liability, but requires something more than a mere combination [*10] of agency relationship and improper conduct by the agent. Ibid. Because neither Terry nor Silverman threatened to fire or demote Faragher, the court concluded that their agency relationship did not facilitate their harassment. Ibid. The en banc court also affirmed the panel's ruling that the City lacked constructive knowledge of the supervisors' harassment. The court read the District Court's opinion to rest on an erroneous legal conclusion that any harassment pervasive enough to create a hostile environment must a fortiori also suffice to charge the employer with constructive knowledge. Id., at 1538. Rejecting this approach, the court reviewed the record and found no adequate factual basis to conclude that the harassment was so pervasive that the City should have known of it, relying on the facts that the harassment occurred intermittently, over a long period of time, and at a remote location. Ibid. In footnotes, the court also rejected the arguments that the City should be deemed to have known of the harassment through Gordon, id., at 1538, n. 9, or charged with constructive knowledge because of its failure to disseminate its sexual harassment policy [*il] among the lifeguards, id., at 1539, n. 11. Since our decision in Meritor, Courts of Appeals have struggled to derive manageable standards to govern employer liability for hostile environment harassment perpetrated by supervisory employees. While following our admonition to find guidance in the common law of agency, as embodied in the Restatement, the Courts of Appeals have adopted different approaches. Compare, e.g., Harrison v. Eddy Potash, Inc., 1I2 F.3d 1437 (CAIO 1997), cert. pending, No. 97-232; III F.3d 1530 (CA11 1997) (case below); Gary v. Long, 59 F.3d 1391 (CADC), cert. denied, 516 ,U. S. 1011 (1995) ; and Karibian v. Columbia University, 24 F. 3d 773 (CA2), cert. denied, 512 U. S. 1213 (1994). We granted certiorari to address the divergence, 522 U.S. (1997), and now reverse the judgment of the Eleventh j LEX1S•NEXIS' ~ LEXIS•NIXIS' ~M LEXIS'•NIXIS 1998 U.S. LEXIS 4216, *11 ~ircuit and remand for entry of judgment in Faragher's favor. II A Page 28 IInder Title VII of the Civil Rights Act of 1964, "it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, [*12] conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). We have repeatedly made clear that although the statute mentions specific employment decisions with immediate consequences, the scope of the prohibition "'is not limited to "economic" or "tangible" discrimination,'" Harris v. Forklift Systems, Inc., 510 U. S. 17, 2I (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U. S., at 64), and that it covers more than "'terms' and 'conditions' in the narrow contractual sense." Oncale v. Sundowner Offshore Services, Inc., 523 II.S. _, (1998) (slip op., at 2-3). Thus, in Meritor we held that sexual harassment so "severe or pervasive" as to "'alter the conditions of [the victim's] employment and create an abusive working environment'" violates Title VII. 477 U. S., at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (CA11 1982)). In thus holding that environmental claims are covered by the statute, we drew upon earlier cases recognizing liability for discriminatory harassment based on race and national origin, see, e.g., Rogers v. EEOC, 454 F.2d [*13J 234 (CAS • 1971), cert. denied, 406 U. S. 957 (1972); Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506 (CA8), cert. denied sub nom. Banta v. United States, 434 U. S. 829 (1977), just as we have also followed the lead of such cases in attempting to define the severity of the offensive conditions necessary to constitute actionable sex discrimination under the statute. See, e.g., Rogers, supra, at 238 ("Mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" would not sufficiently alter terms and conditions of employment to violate Title VII). nl See also Daniels v. Essex Group, Inc., 937 F.2d 1264, 1271-1272 (CA7 1991); Davis v. Monsanto Chemical Co., 858 F.2d 345, 349 (CA6 1988), cert. denied, 490 U. S. 1210 (1989); Sne1I v. Suffolk County, 782 F.2d 1094, II03 (CA2 1986); 1 8. Lindemann & P. Grossman, Employment Discrimination Law 349, and nn. 36-37 (3d ed. 1996) (hereinafter Lindemann & Grossman) (citing cases instructing that "discourtesy or rudeness should not be confused with racial harassment" and that "a lack of racial sensitivity does not, alone, amount to actionable [*14] harassment"). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - nl Similarly, Courts of Appeals in sexual harassment cases have properly drawn on standards developed in cases involving racial harassment. See, e.g., Carrero v. New York City Housing Auth., 890 F.2d 569, 577 (CA2 1989) (citing Lopez v. S. B. Thomas, Inc., 831 F.2d 1184, 1189 (CA2 1987), a case of racial harassment, for the proposition that incidents of environmental sexual harassment "must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive"). Although racial and sexual rassment will often take different forms, and standards my not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment. ~y 1 FXI~ • NFXI~' %%7~ 1 FX1S • NFXIS' %,TM t FXIS ~ NEX1S' 1998 U.S. LEXIS 4216, *14 Page 29 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - So, in Harris, we explained that in order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim [*15] in fact did perceive to be so. 510 V.S., at 2i-22. We directed courts to determine whether an environment is sufficiently hostile or abusive by "looking at all the circumstances," including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id., at 23. Most recently, we explained that Title VII does not prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." Oncale, 523 II.S., at (slip op., at 6). A recurring point in these opinions is that "simple teasing," id., at (slip op., at 7), offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment." These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a "general civility code." Id., at (slip op., at 6). Properly applied, they will filter out complaints attacking "the ordinary tribulations of the workplace, such [*16] as the sporadic use of abusive language, gender-related jokes, and occasional teasing." B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992) (hereinafter Lindemann & Kadue) (footnotes omitted). We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment, and the Courts of Appeals have heeded this view. See, e.g., Carrero v. New York City Housing Auth., 890 F.2d 569, 577-578 (CA2 1989); Moylan v. Mari es County, 792 F.2d 746, 749-750 (CA8 1986); See also 1 Lindemann & Grossman 805-807, n. 290 (collecting cases granting summary judgment for employers because the alleged harassment was not actionably severe or pervasive). While indicating the substantive contours of the hostile environments forbidden by Title VII, our cases have established few definite rules for determining when an employer will be liable for a discriminatory environment that is otherwise actionably abusive. Given the circumstances of many of the litigated cases, including some that have come to us, it is not surprising that in many of them, the issue has been joined over the sufficiency of the abusive conditions, not the standards [*17] for determining an employer's liability for them. There have, for example, been myriad cases in which District Courts and Courts of Appeals have held employers liable on account of actual knowledge by the employer, or high-echelon officials of an employer organization, of sufficiently harassing action by subordinates, which the employer or its informed officers have done nothing to stop. See, e.g., Katz v. Dole, 709 F.2d 251, 256 (CA4 1983) (upholding employer liability because the "employer's supervisory personnel manifested unmistakable acquiescence in or approval of the harassment"); EEOC v. Hacienda Hotel, 881 F.2d 1504, 1516 (CA9 1989) (employer liable where hotel manager did not respond to complaints about supervisors' harassment); Ha11 v. Gus Constr. Co., 842 F.2d 1010, 1016 (CA8 1988) (holding employer liable for harassment by co-workers because supervisor knew of the harassment but did nothing). In such instances, the combined knowledge and inaction may be seen as demonstrable negligence, or as the employer's adoption of the offending conduct and its results, quite as if they had been authorized affirmatively as the employer's policy. Cf. Oncale, [*18] supra, at N LEXIS • NEX1S' ~ M LEX1S ~ NEXIS' % ~ LEXIS'• NEXLS' l 1998 U.S. LEXIS 4216, *18 ~ Page 30 slip op., at 2) (victim reported his grounds for fearing rape to company's safety supervisor, who turned him away with no action on complaint). Nor was it exceptional that standards for binding the employer were not in issue in Harris, supra. In that case of discrimination by hostile environment, the individual charged with creating the abusive atmosphere was the president of the corporate employer, 510 U.S., at 19, who was indisputably within that class of an employer organization's officials who may be treated as the organization's proxy. Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559, 564 (CA8 1992)(employer-company liable where harassment was perpetrated by its owner); see Torres v. Pisano, 116 F.3d 625, 634-635, and n. 11 (CA2) (noting that a supervisor may hold a sufficiently high position "in the management hierarchy of the company for his actions to be imputed automatically to the employer"), cert. denied, 522 II.S. (1997); cf. Katz, supra, at 255 ("Except in situations where a proprietor, partner or corporate officer participates personally in the harassing behavior," an employee must "demonstrate the propriety [*19] of holding the employer liable"). Finally, there is nothing remarkable in the fact that claims against employers for discriminatory employment actions with tangible results, like hiring, firing, promotion, compensation, and work assignment, have resulted in employer liability once the discrimination was shown. See Meritor, 477 U. S., at 70-71 (noting that "courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew, should have known, or approved of the supervisor's actions"); •id., at 75 (Marshall, J., concurring in judgment) ("When a supervisor discriminatorily fires or refuses to promote a black employee, that act is, without more, considered the act of the employer"}; see also Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723, 725 (CA6 1972) (imposing liability on employer for racially motivated discharge by low-level supervisor, although the "record clearly shows that [its] record in race relations is exemplary"). A variety of reasons have been invoked for this apparently unanimous rule. Some courts explain, in a variation of the "proxy" theory [*20] discussed above, that when a supervisor makes such decisions, he "merges" with the employer, and his act becomes that of the employer. See, e.g., Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (CA2 1992) ("The supervisor is deemed to act on behalf of the employer when making decisions that affect the economic status of the employee. From the perspective of the employee, the supervisor and the employer merge into a single entity"); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1312, 1316 (CAZ1 1989) ("When a supervisor requires sexual favors as a quid pro quo for job benefits, the supervisor, by definition, acts as the company"); see also Lindemann & Grossman 776 (noting that courts hold employers "automatically liable" in quid pro quo cases because the "supervisor's actions,_in conferring or withholding employment benefits, are deemed as a matter of law to be those of the employer"). Other courts have suggested that vicarious liability is proper because the supervisor acts within the scope of hs authority when he makes discriminatory decisions in hiring, firing, promotion, and the like. See, e.g., Shager v. Upjohn Co., 913 (*21] F.2d 398, 405 (CA7 1990) ("[A] supervisory employee who fires a subordinate is ~3oing the kind of thing that he is authorized to do, and the wrongful intent with which he does it does not carry his behavior so far beyond the orbit of his responsibilities as to excuse the employer") (citing Restatement § 228). Others ~TM ~EXIS • NEXIS' %~TM LEXIS• NEXIS % ~ LEXIS • NEX1S' Page 31 1998 U.S. LEXIS 4216, *21 have suggested that vicarious liability is appropriate because the supervisor who discriminates in this manner is aided by the .agency relation. See, e.g., Nichols v. Frank, 42 F.3d 503, 514 (CA9 1994). Finally, still other courts have endorsed both of the latter two theories. See, e.g., Harrison, 112 F.3d at 1443; Henson, 682, F.2d at 910. The soundness of the results in these cases (and their continuing vitality), in light of basic agency principles, was confirmed by this Court's only discussion to date of standards of employer liability, in Meritor, supra, which involved a claim of discrimination by a supervisor's sexual harassment of a subordinate over an extended period. In affirming the Court of Appeals's holding that a hostile atmosphere resulting from sex discrimination is actionable under Title VII, we also anticipated proceedings on remand [*22] by holding agency principles relevant in assigning employer liability and by rejecting three per se rules of liability or immunity. 477 U.S., at 70-72. We observed that the very definition of employer in Title VII, as including an "agent," id., at 72, expressed Congress's intent that courts look to traditional principles of the law of agency in devising standards of employer liability in those instances where liability .for the actions of a supervisory employee was not otherwise obvious, ibid., and although we cautioned that "common-law principles may not be transferable in all their particulars to Title VII," we cited the Restatement §§ 219-237, with general approval. Ibid. We then proceeded to reject two limitations on employer liability, while establishing the rule that some limitation was intended. We held that neither the existence of a company grievance procedure nor the absence of actual notice of the harassment on the part of upper management would be dispositive of such a claim; while either might be relevant to the liability, neither would result automatically in employer immunity. Ibid. Conversely, we held that Title VII placed some limit on employer [*23] responsibility for the creation of a discriminatory environment by a supervisor, and we held that Title VII does not make employers "always automatically liable for sexual harassment by their supervisors," ibid., contrary to the view of the Court of Appeals, which had held that "an employer is strictly liable for a hostile environment created by a supervisor's sexual advances, even though the employer neither knew nor reasonably could have known of the alleged misconduct," id., at 69-70. Meritor's statement of the law is the foundation on which we build today. Neither party before us has urged us to depart from our customary adherence to stare decisis in statutory interpretation, Patterson v. McLean Credit Union, 491 U. S. 164, 172-I73 (1989) (stare decisis has "special force" in statutory interpretation). And the force of precedent here is enhanced by Congress's amendment to the liability provisions of Title VII since the Meritor decision, without providing any modification of our holding. Civil Rights Act of 1991, § 102, 105 Stat. 1072, 42 U.S.C. § Z981a; see Keene Corp. v. United States, 508 U.S. 200, 212 (1993) (applying the "presumption [*24] that Congress was aware of [prior] judicial interpretations and, in effect, adopted them"). See also infra, at 26, n. 4. B The Court of Appeals identified, and rejected, three possible grounds drawn TM LEX1S ~ NEXIS' ~ ~ LEXIS ~ NEXIS' % TM LEX1S ~ NEXIS' /// 1998 U.S. LEXIS 4216, *24 Page 32 •rom agency law for holding the City vicariously liable for the hostile environment created by the supervisors. It considered whether the two supervisors were acting within the scope of their employment when they engaged in the harassing conduct. The court then enquired whether they were significantly aided by the agency relationship in committing the harassment, and also considered the possibility of imputing Gordon's knowledge of the harassment to the City. Finally, the Court of Appeals ruled out liability for negligence in failing to prevent the harassment. Faragher relies principally on the latter three theories of liability. 1 A "master is subject to liability for the torts of his servants committed while acting in the scope of their employment." Restatement § 219(1). This doctrine has traditionally defined the "scope of employment" as including conduct."of the kind [a servant] is employed to perform," occurring "substantially within the authorized time and space limits," [*25] and "actuated, at least in part, by a purpose to serve the master," but as excluding an intentional use of force "unexpectable by the master." Id., § 228(1). Courts of Appeals have typically held, or assumed, that conduct similar to the subject of this complaint falls outside the scope of employment. See, e.g., Harrison, 112 F.3d at 1444 (sexual harassment "'simply is not within the job description of any supervisor or any other worker in any reputable business'"); 121 F.3d at 1535-1536 (case below); Andrade v. Mayfair Management, Inc., 88 F.3d 258, 261 (CA4 1996) ("Illegal sexual harassment is beyond the scope of supervisors' employment"); Gary, 59 F.3d at 1397 (harassing supervisor acts outside the scope of his employment in creating hostile environment); Nichols v. Frank, 42 F.3d 503, 508 (CA9 1994) ("The proper analysis for employer liability in hostile environment cases is not whether an employee was acting within his 'scope of employment "'); Bouton v. BMW of North Am., Inc., 29 F.3d 103, 107 (CA3 1994) (sexual harassment is outside scope of employment); see also Ellerth v. Burlington Industries, Inc., decided with [*26] Jansen v. Packaging Corp. of America, 123 F.3d 490, 561 (CA7 1997) (en banc) (Manion, J., concurring and dissenting) (supervisor's harassment would fall within scope of employment only in "the rare case indeed"), cert. granted, No. 97-569; Lindemann & Grossman 812 ("Hostile environment sexual harassment normally does not trigger respondeat superior liability because sexual harassment rarely, if ever, is among the official duties of a supervisor"). But cf. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1351-2352 (CA4 2995) (holding employer vicariously liable in part based on finding that the supervisor's rape of employee was within the scope of employment); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 184 (CA6) (holding that a supervisor's harassment was within the scope of his employment, but nevertheless requiring the victim to show that the employer failed to respond adequately when it learned of the harassment), cert. denied, 506 U. S. 1041 (1992). In so doing, the courts have emphasized that harassment consisting of unwelcome remarks and touching is motivated solely by individual desires and serves no purpose of the employer. For this reason, courts have [*27] likened hostile environment sexual harassment to the classic "frolic and detour" for which an employer has no vicarious liability. These cases ostensibly stand in some tension with others arising outside Title VII, where the scope of employment has been defined broadly enough to hold employers vicariously liable for intentional torts that were in no sense /~~ 1 FYI[ : NFY1~' %%/~ 1 F~(1~ : N1=~C1~' %%I~ 1 FYI ~ NFX1~' 1998 U.S. LEXIS 4216, *27 Page 33 inspired by any purpose to serve the employer. In Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (1968), for example, the Second Circuit charged the Government with vicarious liability for the depredation of a drunken sailor 'returning to his ship after a night's carouse, who inexplicably opened valves that flooded a drydock, damaging both the drydock and the ship. Judge Friendly acknowledged that the sailor's conduct was not remotely motivated by a purpose to serve his employer, but relied on the "deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities," and imposed vicarious liability on the ground that the sailor's conduct "was not so 'unforeseeable' as to make it unfair to charge the Government with [*28] responsibility." Id., at 171. Other examples of an expansive sense of scope of employment are readily found, see, e.g., Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 128 N. E. 711 (1920) (opinion of Cardozo, J.) (employer was liable under worker's compensation statute for eye injury sustained when employee threw an apple at another; the accident arose "in the course of employment" because such horseplay should be expected); Carr v. Wm. C. Crowell Co., 28 Cal. 2d 652, 171 P. 2d 5 (1946) (employer liable for actions of carpenter who attacked a co-employee with a hammer). Courts, in fact, have treated scope of employment generously enough to include sexual assaults. See, e.g., Primeaux v. United States, 102 F.3d 1458, 1462-1463 (CA8 1996) (federal police officer on limited duty sexually assaulted stranded motorist); Mary M. v. Los Angeles, 54 Cal. 3d 202, 216-221, 814 P. 2d 1341, 1349-1352 (Z 991) (en banc) (police officer raped motorist after placing her under arrest); Doe v. Samaritan Counseling Ctr., 791 P. 2d 344, 348-349 (Alaska 1990) (therapist had sexual relations with patient); Turner v. State, 494 So. 2d 1291, 1296 (La. App. (*29J 1986) (National Guard recruiting officer committed sexual battery during sham physical examinations); Lyon v. Carey, 533 F.2d 649, 655 (CADC 1976) (furniture deliveryman raped recipient of furniture); Samuels v. Southern Baptist Hospital, 594 So. 2d 571, 574 (La. App. 1992) (nursing assistant raped patient), n2 The rationales for these decisions have varied, with some courts echoing Bushey in explaining that the employees's acts were foreseeable and that the employer should in fairness bear the resulting costs of doing business, see, e.g., Mary M., supra, at 218, 814 P. 2d., at 1350, and others finding that the employee's sexual misconduct arose from or was in some way related to the employee's essential duties. See, e.g., Samuels, supra, at 574 (tortious conduct was "reasonably incidental" to the performance of the nursing assistant's duties in caring for a "helpless" patient in a "locked environment"). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - n2 It bears noting that many courts in non-Title VII cases have held sexual assaults to fall outside the scope of employment. See Note, "Scope of Employment" Redefined: Holding Employers Vicariously Liable for Sexual Assaults Committed by their Employees, 76 Minn. L. Rev. ISIS, 1521-1522, and nn. 33, 34 (1992)(collecting cases). - - - - - - - - - - - - - -End Footnotes- - - _ _ _ [*30] - - - - - - - - - - An assignment to reconcile the cited would be a taxing one. Here results do not necessarily reflect employment contracts involved, but '%/ ~ LEXIS ~ NEX1S' run of the Title VII cases with those just it is enough to recognize that their disparate wildly varying terms of the particular represent differing judgments about the ~. LEXIS ~ NEX1S' % LEXIS ~ NEX1S' ,. 1998 U.S. LEXIS 4216, *30 Page 34 desirability of holding an employer liable for his subordinates' wayward behavior. In the instances in which there is a genuine question about the employer's responsibility for harmful conduct he did not in fact authorize, a holding that the conduct falls within the scope of employment ultimately expresses a conclusion not of fact but of law. As one eminent authority has observed, the "highly indefinite phrase" is "devoid of meaning in itself" and is "obviously no more than a bare formula to cover the unordered and unauthorized acts of the servant for which it is found to be expedient to charge the master with liability, as well as to exclude other acts for which it is not." w. Reeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Renton on the Law of Torts 502 (5th ed. 1984); see also Seavey, Speculations as to "Respondent Superior," is Studies in Agency 129, 155 (1949) ("The liability [*31] of a master to a third person for the torts of a servant has been widely extended by aid of the elastic phrase 'scope of the employment' which may be used to include all which the court wishes to put into it"). Older cases, for example, treated smoking by an employee during working hours as an act outside the scope of employment, but more recently courts have generally held smoking on the job to fall within the scope. Prosser & Keeton, supra, at 504, and n. 23. It is not that employers formerly did not authorize smoking but have now begun to do so, or that employees previously smoked for their own purposes but now do so to serve the employer. We simply understand smoking differently now and have revised the old judgments about what ought to be done about it. The proper analysis here, then, calls not for a mechanical application of indefinite and malleable factors set forth in the Restatement, see, e.g., §§ •219 ,228, 229, but rather an enquiry into the reasons that would support a conclusion that harassing behavior ought to be held within the scope of a supervisor's employment, and the reasons for the opposite view. The Restatement itself points to such an approach, as in the [*32] commentary that the "ultimate question" in determining the scope of employment is "whether or not it is just that the loss resulting from the servant's acts should be considered as one of the normal risks to be borne by the business in which the servant is employed." Id., § 229, Comment a. See generally Taber v. Maine, 67 F.3d 1029, 1037 (CA2 1995) ("As the leading Torts treatise has put it, 'the integrating principle' of respondent superior is 'that the employer should be liable for those faults that may be fairly regarded as risks of his business, whether they are committed in furthering it or not "') (quoting 5 F. Harper, F. James & O. Gray, Law of Torts § 26.8, pp. 40-41 (2d ed. 1986) In the case before us, a justification for holding the offensive behavior within the scope of Terry's and Silverman's employment was well put in Judge Barkett's dissent: "[A] pervasively hostile work environment of sexual harassment is never (one would hope) authorized, but the supervisor is clearly charged with maintaining a productive, safe work environment. The supervisor directs and controls the conduct of the employees, and the manner of doing so may inure to the employer's [*33] benefit or detriment, including subjecting the employer to Title VII liability." 112 F.3d at 1542 (opinion dissenting in part and concurring in part). It is by now well recognized that hostile environment sexual harassment by supervisors (and, for that matter, co-employees) is a persistent problem in the workplace. See Lindemann & Kadue ~4-5 (discussing studies showing prevalence of sexual harassment); E1lerth, I23 F.3d at 511 (Posner, C. J., concurring and dissenting) ("Everyone knows by now that sexual harassment is a common problem in the American workplace"). An emgloyer can, is a general sense, reasonably anticipate the possibility of such n '*' LEX1S ~ NEXLS' 1998 U.S. LEXIS 4216, *33 Paae 35 conduct occurring in its workplace, and one might justify the assignment of the burden of the untoward behavior to the employer as one of the costs of doing business, to be charged to the enterprise rather than the victim. As noted, supra, at 17-18, developments like this occur from time to time in the law of agency. Two things counsel us to draw the contrary conclusion. First, there is no reason to suppose that Congress wished courts to ignore the traditional distinction between acts falling within the scope and acts amounting to what [*34} the older law called frolics or detours from the course of employment. Such a distinction can readily be applied to the spectrum of possible harassing conduct by supervisors, as the following examples show. First, a supervisor might discriminate racially in job assignments in order to placate the prejudice pervasive in the labor force. Instances of this variety of the heckler's veto would be consciously intended to further the employer's interests by preserving peace in the workplace. Next, supervisors might reprimand male employees for workplace failings with banter, but respond to women's .shortcomings in harsh or vulgar terms. A third example might be the supervisor who, as here, expresses his sexual interests in ways having no agparent object whatever of serving an interest of the employer. If a line is to be drawn between scope and frolic, it would lie between the first two examples and the third, and it thus makes sense in terms of traditional agency law to analyze the scope issue, in cases like the third example, just as most federal courts addressing that issue have done, classifying the harassment as beyond the scope of employment. The second reason goes to an even broader [*35] unanimity of views among the holdings of District Courts and Courts of Appeals thus far. Those courts have held not only that the sort of harassment at issue here was outside the scope of supervisors' authority, but, by uniformly judging employer liability for co-worker harassment under a negligence standard, they have also implicitly treated such harassment as outside the scope of common employees' duties as well. See Blankenship v. Parke Care Centers, Inc., 123 F.3d 868, 872-873 (CA6 Z997), cert. denied, 522 U.S. (1998); Fleming v. Boeing Co., Z20 F.3d 242, 246 (CAII 1997); Perry v. Ethan A11en, Inc., lI5 F.3d 143, 149 (CA2 1997); Yamaguchi v. United States Dept. of Air Force, 109 F.3d 1475, 1483 (CA9 1997); Varaer v. National Super Markets, Inc., 94 F.3d 1209, 1213 (CA8 1996), cert. denied, 519 U.S. (1997); McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 480 (CA7 1996); Andrade, 88 F.3d at 26I; Waymire v. Harris County, 86 F.3d 424, 428-429 (CAS 1996); Hirase-Doi v. U. S. West Communications, Inc., 61 F.3d 777, 783 (CA10 1995); Andrews v. Philadelphia, 895 F.2d 1469, 1486 (CA3 1990); cf. [*36] Morrison v. Carleton Woolen Mills, Inc., I08 F.3d 429, 438 (CA1 1997) (applying "knew or should have known" standard to claims of environmental harassment by a supervisor}; see also 29 CFR § 1604.11(d) (1997) (employer is liable for co-worker harassment if it "knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action"); 3 L. Larson & A. Larson, Employment Discrimination § 46.07[4][a], p. 46-101 (2d ed. 1998) (courts "uniformly" apply EEOC rule; "it is not a controversial area"). If, indeed, the cases did not rest, at least implicitly, on the notion that such harassment falls outside the scope of employment, their liability issues would have turned simply on the application of the scope- of-employment rule. Cf. Hunter v. A11is-Chalmers, Inc., 797 F.2d 2417, 1422 (CA7 1986) (noting that employer will not usually be liable under respondeat superior for employee's racial harassment because it "would be the rare case where racial harassment could be thought by the author of the harassment to help the TM LEXIS ~ NEXIS' % TM LEX1S ~ NEX1S' % TM ~ ' l _ % LEXIS NEX1S ,. w Page 36 1998 U.S. LEXIS 4216, *36 ~ployer's business"). It is quite unlikely that these cases would escape efforts to render them .[*37] obsolete if we were to hold that supervisors who engage in discriminatory harassment are necessarily acting within the scope of their employment. The rationale for placing harassment within the scope of supervisory authority would be the fairness of requiring the employer to bear the burden of foreseeable social behavior, and the same rationale would apply when the behavior was that of co-employees. The employer generally benefits just as obviously from the work of common employees as from the work of supervisors; they simply have different jobs to do, all aimed at the success of the enterprise. As between an innocent employer and an innocent employee, if we use scope of employment reasoning to require the employer to bear the cost of as actionably hostile workplace created by one class of employees (i.e., supervisors), it could appear just as appropriate to do the same when the environment was created by another class (i.e., co-workers). The answer to this argument might well be to point out that the scope of supervisory employment may be treated separately by recognizing that supervisors have special authority enhancing their capacity to harass, and that the employer can [*38] guard against their misbehavior more easily because their numbers are by definition fewer than the numbers of regular employees. But this answer happens to implicate an entirely separate category of agency law (to be considered in the next section), which imposes vicarious liability on employers for tortious acts committed by use of particular authority conferred as an ~lement of an employee's agency relationship with the employer. Since the virtue of categorical clarity is obvious, it is better to reject reliance on misuse of supervisory authority (without more) as irrelevant to scope-of-employment analysis. 2 The Court of Appeals also rejected vicarious liability on the part of the City insofar as it might rest on the concluding principle set forth in § 219(2)(d) of the Restatement, 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." Faragher points to several ways in which the agency .relationship aided Terry [*39] and Silverman in carrying out their harassment. She argues that in general offending supervisors can abuse their authority to keep subordinates in their presence while they make offensive statements, and that they implicitly threaten to misuse their supervisory powers to deter any resistance or complaint. Thus, she maintains that power conferred on Terry and Silverman by the City enabled them to act for so long without provoking defiance or complaint. The City, however, contends that § 219(2)(d) has no application here. It argues that the second qualification of the subsection, referring to a servant "aided in accomplishing the tort by the existence of the agency relation," merely "refines" the one preceding it, which holds the employer vicariously ~iable for its servant's abuse of apparent authority. Brief for Respondent 30-31, and n. 24. But this narrow reading is untenable; it would render the second qualification of § 219(2)(d) almost entirely superfluous (and would seem LDCIS~NEXIS' ~ LEXIS NEXLS' ~/// LEXLS ~ NEXLS' 1998 U.S. LEXIS 4216, *39 Pagr. 37 to ask us to shut our eyes to the potential effects of supervisory authority, ' even when not explicitly invoked). The illustrations accompanying this subsection make clear that it covers not only cases involving [*40] the abuse of apparent authority, but also to cases in which tortious conduct is made possible or facilitated by the existence of the actual agency relationship. See Restatement § 219 Comment a (noting employer liability where "the servant may be able to cause harm because of his position as agent, as where a telegraph operator sends false messages purporting to come from third persons" and where the manager who operates a store "for an undisclosed principal is enabled to cheat.. the customers because of his position^); § 247, Illustration 1 (noting a newspaper's liability for a libelous editorial published by an editor acting for his own purposes). We therefore agree with Faragher that in implementing Title VII it makes sense to hold an employer vicariously liable for some tortious conduct of a supervisor made possible by abuse of his supervisory authority, and that the aided-by-agency-relation principle embodied in § 219(2)(d) of the Restatement provides an appropriate starting point for determining liability for the kind of harassment presented here. n3 Several courts, indeed, have noted what Faragher has argued, that there is a sense in which a harassing supervisor is always [*41J assisted in his misconduct by the supervisory relationship. See, e.g., Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (CA7 1993); Taylor v. Metzger, 152 N. J. 490, 505, 706 A. 2d 685, 692 (1998) (emphasizing that a supervisor's conduct may have a greater impact than that of colleagues at the same level); cf. Torres, I16 F.3d at 63Z. See also White v. Monsanto Co., 585 So. 2d 1205, 1209-1210 (La. 1991) (a supervisor's harassment of a subordinate is more apt to rise to the level of intentional infliction of emotional distress than comparable harassment by a co-employee); Contreras v. Crown Zellerbach Corp., 88 Wash. 2d 735, 740, 565 P. 2d 1173, 1176 (1977) (same); AZcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493, 498-499, and n. 2, 468 P. 2d 216, 218-219, and n. 2 (1970) (same}. 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. When a person with supervisory authority discriminates in the terms and conditions of subordinates' employment, his actions necessarily draw upon his superior [*42] position over the people who report to him, or those under them, whereas an employee generally cannot check a supervisor's abusive conduct the same way that she might deal with abuse from a co-worker. When a fellow employee harasses, the victim can walk away or tell the offender where to go, but it may be difficult to offer such responses to a supervisor, whose "power to supervise -- [which may be] to hire and fire, and to set work schedules and pay rates-- does not disappear when he chooses to harass through insults and offensive gestures rather than directly with threats of firing or promises of promotion." Estrich, Sex at Work, 43 Stan. L. Rev. 813, 854 (1991). Recognition of employer liability when discriminatory misuse of supervisory authority alters the terms and conditions of a victim's employment is underscored by the fact that the employer has a greater opportunity to guard against misconduct by supervisors than by common workers; employers have greater opportunity and incentive to screen them, train them, and monitor their performance. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n3 We say "starting point" because our obligation here pronouncement of agency law in general or to transplant § VII. Rather, it is to adapt agency concepts to the practi~ TM LEX1S ~ NEXIS' ~ ~. LEXIS ~ NEX1S' is not to make a 219(2)(d) into Title gal objectives of Title TM ~ LEXIS ~ NEX1S' „' .. 1998 U.S. LEXIS 4216, *42 Page 38 ~II. As we said in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986),' "common-law principles may not be transferable in all their particulars to Title VII." - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*43] In sum, there are good reasons for vicarious liability for misuse of supervisory authority. That rationale must, however, satisfy one more condition. We are not entitled to recognize this theory under Title VII unless we can square it with Meritor's holding that an employer is not "automatically" liable for harassment by a supervisor who creates the requisite degree of discrimination, n4 and there is obviously some tension between that holding and the position that a supervisor's misconduct aided by supervisory authority subjects the employer to liability vicariously; if the "aid" may be the unspoken suggestion of retaliation by misuse of supervisory authority, the risk of automatic liability is high. To counter it, we think there are two basic alternatives, one being to require proof of some affirmative invocation of that authority by the harassing supervisor, the other to recognize an affirmative defense to liability in some circumstances, even when a supervisor has created the actionable environment. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 We are bound to honor Meritor on this point not merely because of the high ~ralue placed on stare decisis in statutory interpretation, supra, at 13-14, but for a further reason as well. With the amendments enacted by the Civil Rights Act of 1991, Congress both expanded the monetary relief available under Title VZI to include compensatory and punitive damages, see § 102, 105 Stat. 1072, 42 U.S.C. § 1981a, and modified the statutory grounds of several of our decisions, see ~ 101 et seq. The decision of Congress to leave Meritor intact is conspicuous. We thus have to assume that in expanding employers' potential liability under Title VII, Congress relied on our statements in Meritor about the limits of employer liability. To disregard those statements now (even if we were convinced of reasons for doing so) would be not only to disregard stare decisis in statutory interpretation, but to substitute our revised judgment about the proper allocation of the costs of harassment for Congress's considered decision on the subject. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - ~- - [*44] There is certainly some authority for requiring active or affirmative, as distinct from passive or implicit, misuse of supervisory authority before liability may be imputed. That is the way some courts have viewed the familiar cases holding the employer liable for discriminatory employment action with tangible consequences, like firing and demotion. See supra, at 11-12. And we have already noted some examples of liability provided by the Restatement itself, which suggests that an affirmative misuse of power might be required. See supra, at 23-24 (telegraph operator sends false messages, a store manager .cheats customers, editor publishes libelous editorial). But neat examples illustrating the line between the affirmative and merely implicit uses of power are not easy to come by in considering management //ATM LEXIS ~ NEXIS' %~~ LDCIS ~ NEXIS' %~~ LEX1S ~ NEXiS' 1998 U.S. LEXIS 4216, *44 Page 39 behavior. Supervisors do not make speeches threatening sanctions whenever they - make requests in the legitimate exercise of managerial authority, and yet every subordinate employee knows the sanctions exist; this is the reason that courts have consistently held that acts of supervisors have greater power to alter the environment than acts of co-employees generally, see supra, (*45] at 24-25. How far from the course of ostensible supervisory behavior would a company officer have to step before his orders would not reasonably be seen as actively using authority? Judgment calls would often be close, the results would often seem disparate even if not demonstrably contradictory, and the temptation to litigate would be hard to resist. We think plaintiffs and defendants alike would be poorly served by an active-use rule. The other basic alternative to automatic liability would avoid this particular temptation to litigate, but allow an employer to show as an affirmative defense to liability that the employer had exercised reasonable care to avoid harassment and to eliminate it when it might occur, and that the complaining employee had failed to act with like reasonable care to take advantage of the employer's safeguards and otherwise to prevent harm that could have been avoided. This composite defense would, we think, implement the statute sensibly, for reasons that are not hard to fathom. Although Title VII seeks "to .make persons whole for injuries suffered on account of unlawful employment discrimination," Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (*46] (Z975), its "primary objective," like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm. Id., at 417. As long ago as 1980, the Equal Employment Opportunity Commission (EEOC), charged with the enforcement of Title VII, 42 U.S.C. § 2000e-4, adopted regulations advising employers to "take all steps necessary to prevent sexual harassment from occurring, such as informing employees of their right to raise and how to raise the issue of harassment." 29 CFR § 1604.11 (f) (1997), and in 1990 the Commission issued a policy statement enjoining employers to establish a complaint procedure "designed to encourage victims of harassment to come forward [without requiring] a victim to complain first to the offending supervisor." EEOC Policy Guidance on Sexual Harassment, 8 FEP Manual 405:6699 (Mar. 19, 1990) (internal quotation marks omitted). It would therefore implement clear statutory policy and complement the Government's Title VII enforcement efforts to recognize the employer's affirmative obligation to prevent violations and give credit here to employers who make reasonable efforts to discharge their duty. Indeed, a theory of vicarious [*47] liability for misuse of supervisory power. would be at odds with the statutory policy if it failed to provide employers with some such incentive. The requirement to show that the employee has failed in a coordinate 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. Ford Motor Co. v. EEOC, 458 U. S. 219, 23I, n. 25 (Z 982) (quoting C. McCormick, Law of Damages 127 (1935) (internal quotation marks omitted). 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 herself of the employer's preventive or remedial apparatus, she should not recover damages that could have been avoided if she had done so. If the victim could have avoided harm, no liability should be found against the '% ~ LEXIS ~ NEXIS' ~ ~ LEX1S'• NEXLS' % TM l / % LEX1S NEXIS A manber of cM Rced Elsevier plc gvuP -~ .~ member a ,hc heed Elmer ele mr.se ~ ~ _ __ . . _. . 1998 U.S. LEXIS 4216, *47 Page 40 ~rployer who had taken reasonable care, and if damages could reasonably have been mitigated no award against [*48] a liable employer should reward a plaintiff for what her own efforts could have avoided. In order to accommodate the principle of vicarious liability for harm caused by misuse of supervisory .authority, as well as Title VIPs equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Burlington Industries, Inc. v. Ellerth, ante, 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. [*49] 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 s not limited to showing an unreasonable failure to use any complaint procedure ~rovided 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. See Burlington, ante, at 17. Applying these rules here, we believe that the judgment of the Court of Appeals 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. It is undisputed that these supervisors "were granted virtually unchecked [*50] authority" over their subordinates, "directly controlling and supervising all aspects of [Faragher's] day-to-day activities." 111 F.3d at, 1544 (Barkett, J., dissenting in part and concurring in part). It is also clear that Faragher and her colleagues were "completely isolated from the City's higher management." Ibid. The City did not seek review of these findings.- 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 policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors like Terry and Silverman. The record also makes clear that the City's policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints. App. 274. Under such ircumstances, we hold as a matter of law that the City could not be found to ~ave exercised reasonable care to prevent the supervisors' harassing conduct. Unlike the employer of a small workforce, who might expect [*51] that sufficient care to prevent tortious behavior could be exercised informally, LIEXIS ~ NEX1S' ~~ LEX1S ~ NEXIS' %~TM LEXIS ~ NEXIS' 1998 U.S. LEXIS 4216, *51 Page 41 those responsible for city operations could not reasonably have thought that precautions against hostile environments in any one of many departments in far-flung locations could be effective without communicating some formal policy against harassment, with a sensible complaint procedure. We have drawn this conclusion without overlooking two possible grounds upon which the City might argue for the opportunity to litigate further. There is, first, the Court of Appeals's indulgent gloss on the relevant evidence: "There is some evidence that the City did not effectively disseminate among Marine Safety employees its sexual harassment policy." Id., at 1539, n. 11. But, in contrast to the Court of Appeals's characterization, the District Court made an explicit finding of a "complete failure on the part of the City to disseminate said policy among Marine Safety Section employees." 864 F. Supp., at 1560. The evidence supports the District Court's finding and there is no contrary claim before us. The second possible ground for pursuing a defense was asserted by the City in its argument addressing the possibility (*52] of negligence liability in this case. It said that it should not be held liable for failing to promulgate an antiharassment policy, because there was no apgarent duty to do so in the 1985-1990 period. The City purports to rest this argument on the position of the EEOC during the period mentioned, but it turns out that the record on this point is quite against the City's position. Although the EEOC issued regulations dealing with promulgating a statement of policy and providing a complaint mechanism in 1990, see supra, at 28, ever since 1980 its regulations have called for steps to prevent violations, such as informing employees of their rights and the means to assert them. Ibid. The City, after all, adopted an antiharassment policy in 1986. 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 reasor. to remand for consideration of Faragher's efforts to mitigate her own damages, since the award to her was solely nominal. 3 The Court of Appeals also rejected the. possibility that it could hold the City liable for the reason that it knew of the harassment vicariously through the [*53] knowledge of its supervisors. We have no occasion to consider whether this was error, however. We are satisfied that liability on the ground of vicarious knowledge could not be determined without further factfinding on remand, whereas the reversal necessary on the theory of supervisory harassment renders any remand for consideration of imputed knowledge entirely unjustifiable (as would be any consideration of negligence as an alternative to a theory of vicarious liability here). III The judgment of the Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for reinstatement of the judgment of the District Court. It is so ordered. LEXIS ~ NEX1S' ~ y LEXIS ~ NEXiS' % ~ LEX1S ~ NEXIS' /1 A n.....4... ..C .1.. 4..w CI....... nln s.rw.n ~ ~ . _-~_ _. _. _. ~ n rj • ^ 1998 U.S. LEXIS 4216, *53 ~SSENTBY: THOMAS DISSENT: JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting. Page 42 For the reasons given in my dissenting opinion in Burlington Industries v. Ellerth, ante, absent an adverse employment consequence, an employer cannot be held vicariously liable if a supervisor creates a hostile work environment. 9etitioner suffered no adverse employment consequence; thus the Court of Appeals was correct to hold that the City is not vicariously liable for the conduct of Chief Terry and Lieutenant Silverman. Because the Court [*54] reverses this judgment, I dissent. As for petitioner's negligence claim, the District Court made no finding as to the City's negligence, and the Court of Appeals did not directly consider the issue. I would therefore remand the case to the District Court for further proceedings on this question alone. I disagree with the Court's conclusion that merely because the City did not disseminate its sexual harassment policy, it should be liable as a matter of law. See ante, at 31. ni The City should be allowed to show either that: (1) there was a reasonably available avenue through which petitioner could have complained to a City official who supervised both Chief Terry and Lieutenant Silverman, see Brief for United States and EEOC as Amici Curiae in Meritor Savings Bank, FSB v. Vinson, O.T. 1985, No. 84-1979, p. 26, n2 or (2} it would not have learned of the harassment even if the policy had been distributed. n3 Petitioner, as the plaintiff, would of course bear the burden of proving the City's negligence. - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - nl The harassment alleged in this case occurred intermittently over a 5-year period between 1985 and 1990; the District Court's factual findings do not indicate when in 1990 it ceased. It was only in March 1990 that the Equal Employment Opportunity Commission (EEOC) issued a "policy statement" "enjoining" employers to establish complaint procedures for sexual harassment. See ante, at 28. The 1980 Guideline on which the Court relies--because the EEOC has no substantive rulemaking authority under Title VII, the Court is inaccurate to refer to it as a "regulation," see ante, at 32,--was wholly precatory and as such cannot establish negligence per se. See 29 CFR § 1604.11 (f) (1997) ("An employer should take all steps necessary to prevent sexual harassment from occurring "). [*55l n2 The City's Employment Handbook stated that employees with "complaints or grievances" could speak to the City's Personnel and Labor Relations Director about problems at work. See App. 280. The District Court found that the City's Personnel Director, Richard Bender, moved quickly to investigate the harassment charges against Terry and Silverman once they were brought to his attention. See App. to Pet. for Cert. 80a. n3 Even after petitioner read the City's sexual harassment policy in 1990, see App. 188, she did not file a charge with City officials. Instead, she filed suit against the City in 1992. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - LEXIS ~ NEXIS' % ~ LEX1S ~ NEXIS' % ~ LEXIS ~ NEXIS' _ ~ _ l