When is an employer liable for the acts of supervisory employees in a hostile work environment sexual harassment claim? In a 7-2 decision on 6/26/98, the Supreme Court held that an employer may be held liable for discrimination caused by a supervisor, subject to an affirmative defense that would look to the reasonableness of the employer’s and the victim’s conduct.Plaintiff, a lifeguard employed by the City, sued her supervisors and the City for hostile work environment sexual harassment. The district court found for the plaintiff, holding the City liable because it had constructive knowledge of the harassment and because the supervisor was the City’s agent. In an en banc opinion, the Court of Appeals for the Eleventh Circuit reversed the district court's judgment for the plaintiff.
The Supreme Court reversed the decision of the Court of Appeals, and ordered judgment for the lifeguard.
Speaking through Justice Souter, the Court ruled that an employer is subject to vicarious liability for hostile work environment sexual harassment perpetrated by a supervisor. Where no tangible employment action has been taken, the employer may assert an affirmative defense consisting of two elements: (1) that the employer exercised reasonable care to prevent and promptly correct sexual harassment in the workplace, and (2) that the employee unreasonably failed to avoid the harm by taking advantage of preventive measures established by the employer. The employer may not avail itself of this defense where the supervisory harassment resulted in an adverse employment decision.
The NAM filed an amicus brief 1/28/98 in support of Boca Raton, arguing that an employer should not be liable for a hostile workplace environment unless it should have known about or failed to respond reasonably to incidents of sexual harassment. The Court has now held that the employer may be held liable for the acts of a supervisor regardless of whether the employer should have known about them. The new affirmative defense for companies thus becomes crucial to defending these cases.