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Paul Millus Writes "Faragher and Ellerth: Revisited 12 Years Later" for NYLJ

May 9, 2013

Publication Source: New York Law Journal


In 1998 the Supreme Court decided two cases on the same day that changed employment discrimination law and spurred a cottage industry: the redrafting of every employer's handbook then existing. In Faragher v. City of Boca Raton, and Burlington Industries v. Ellerth, both decided on the same day, the Supreme Court made two important holdings relating to employer liability in sexual harassment claims.1 The Supreme Court held that '[a]n 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.' If the conduct results in a tangible employment action, such as discharge or demotion, the employer has no affirmative defense to liability.

If, on the other hand, the supervisor's harassment did not culminate in a tangible employment action, the Supreme Court established an affirmative defense that an employer may assert to avoid liability in certain circumstances. To establish the affirmative defense under Faragher and Ellerth, the employer must prove: (1) 'that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,' and (2) 'that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'2 The employer must establish both elements to avoid liability through this affirmative defense. This was new to the law as the Supreme Court had never recognized an affirmative defense in Title VII actions before these decisions.

These decisions resulted in a windfall for those involved in employment training and the drafting of employment handbooks. Before Faragher and Ellerth, training employees to avoid harassment in the workplace did little good from a liability standpoint. Employer liability based on a hostile work environment was based on a hodgepodge of theories such as respondeat superior, apparent authority, negligence, or a combination of the three. The focus was on the wrongdoer's actions and/or whether the employer was complicit in some way.3

Subsequent to the decisions in Faragher and Ellerth, employers had a chance to establish a game plan to lower their risk of liability that could result from the harassment of their employees. Employers went right to work crafting employee handbooks to include proper anti-discrimination policies in the workplace. Then, with the growth of the Internet, came literally thousands of anti-discrimination training suppliers. Now, with the upcoming decision in the case of Vance v. Ball State, 646 F.3d 461 (7th Cir. 2011), the rules may change yet again.

The Genesis of Discord

The Supreme Court's attempt to establish legal guidelines for harasser liability when that individual is a 'supervisor,' has been met with varying differences of opinion when it came to defining who is a 'supervisor' in the workplace. The importance of knowing when one is a 'supervisor' or not cannot be understated. A broader definition of 'supervisor' could make it very difficult for employers (who have spent untold amounts of money to try to insulate themselves from liability), to distinguish between a 'supervisor' and a mere co-worker.

Six months after Faragher and Ellerth, the U.S. Court of Appeals for the Seventh Circuit approached the question of who is a 'supervisor' in restrictive fashion, holding that employers would be vicariously liable only for race or sex harassment by those supervisors possessing authority of 'a certain magnitude' over their victim's employment terms, namely to make 'consequential employment decisions,' 'primarily…the power to hire, fire, demote, promote, transfer, or discipline [him or her].'4

The First and Eighth circuits have adopted this 'power over formal employment status' view.5 Likewise, the U.S. Court of Appeals for the Third and Sixth circuits have adopted a similar approach.6

Conversely, the Second, Fourth, Ninth and Tenth circuits, and district courts of the Fifth and Eleventh circuits have rejected the Seventh Circuit's restrictive rule. They have held that harassment by personnel overseeing the victim's daily work assignments and performance, not just power over the employee's formal employment status, warrants vicarious employer liability. 7

The 'Vance' Case

In 2005 Saundra Davis, a salaried employee whom Ball State designated as a 'supervisor,' was assigned to the catering department and given authority to direct Maetta Vance's and other employees' work. Davis and another white employee created an environment of physical intimidation and racial harassment.

Vance sued, alleging hostile environment and retaliation claims under Title VII. The District Court granted Ball State's motion for summary judgment, concluding, inter alia, that the evidence raised no triable issue as to Title VII employer responsibility for Vance's work environment. The court first concluded that, whether or not Davis 'had authority to direct the work of [Vance and] other employees,' she lacked what the Seventh Circuit precedent established to be the sine qua non of 'supervisor' status under Faragher and Ellerth, 'the power to hire, fire, demote, promote, transfer, or discipline an employee.'8

The Seventh Circuit affirmed, upholding the District Court as to the sufficiency of the 'basis for employer liability.' The court rejected the argument that Davis' conduct should be attributed to Ball State under the Faragher/Ellerth standard, explaining that circuit precedent limited that rule to harassment by supervisors with the 'authority…'to hire, fire, demote, promote, transfer, or discipline [their victim].''9 The Supreme Court granted Vance's petition for a writ of certiorari on June 25, 2012. The matter was argued before the court on Nov. 26, 2012.

The Parties' Positions

From the appellant's perspective, both the primary concerns motivating the court's adoption of the vicarious liability rule—the harasser's enhanced ability (i) to command his victims' presence and (ii) to retaliate against victims who resist—are directly implicated when the harasser has the authority to direct his victim's daily work activities, whether or not he also has the authority to make formal employment decisions.

Citing precedent from the Supreme Court's opinion in Meritor Sav. Bank, FSB v. Vinson, which pre-dated Faragher, the court stated, '[a] supervisor's responsibilities do not begin and end with the power to hire, fire, and discipline employees,' but rather include 'the day-to-day supervision of the work environment.'10 Thus, the appellant has argued that strict application of the Seventh Circuit rule produces 'perverse consequences' and the rule simply 'does not comport with the realities of the workplace.'11

Ball State understood that it had to walk a fine line as the Supreme Court historically tries to avoid bright line standards. Indeed, the court has long recognized that Title VII should be construed with 'common sense,' and an eye toward workplace reality. Indeed, it has often espoused a 'totality of circumstances' approach to assess whether a claim exists under many areas of the law.

As such, Ball State was forced to almost concede that the Seventh Circuit rule does not necessarily reach the entire set of employees who may qualify as supervisors under this court's precedent— i.e. it is not broad enough. Instead, Ball State relied on an 'enforce the laws on the books' argument, stating that under the agency principles the court has adopted, vicarious liability also may be appropriate when the employee is authorized to control a victim's daily work activities in a way that materially enables the harassment. Pointing out that such employees—like the lifeguard in Faragher—have the ability to 'implicitly threaten to misuse their supervisory powers to deter any resistance or complaint' by their victims, employees who do may also qualify as supervisors. Yet the implication in Ball State's argument remains that, without the bright line test, the exception becomes the rule and every worker could potentially be viewed as a 'supervisor' depending on the facts of the particular case.

After arguing that the facts do not warrant a reversal, Ball State argued that a broader definition of supervisor could prove difficult for employers and employees alike to tell when an individual is a supervisor rather than a co-worker, or vice versa, for purposes of triggering vicarious liability under Title VII. While Ball State reminded the court that the agency principles it has adopted 'foreclose the Seventh Circuit position as a complete answer to who is a supervisor,'12 in the end, however, employers want the certainty a bright line test affords and Ball State is no different.

Impact of Ruling

If the court finds in favor of the petitioner, it will take time to understand whether Faragher and Ellerth have been re-written to the point where the affirmative defense they established for employers is now all but meaningless. However, that may be somewhat of an overstatement. There is no question that everyone can recognize a person in the workplace who does NOT direct the work of anyone else but simply follows commands. This will not change whatever the court decides.

However, employers will have to be wary of those workers who may try to 'act' as supervisors directing others to perform tasks meant for them. The employers will be forced to assess their workers and make sure the employer is not receiving the 'benefits' that flow from a self-starting worker acting akin to a supervisor who may also be using his/her self-attained authority to press an agenda of harassment. Furthermore, many more cases will now survive summary judgment sought by the employer then before such a ruling. In that event, those attorneys who dedicated themselves to drafting proper anti-discrimination policies and overseeing employee training can dedicate their time to other tasks—like trial.

Paul Millusis of counsel to Meyer, Suozzi, English & Klein and is based in the Garden City office. He can be reached at [email protected].


  1. Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
  2. Faragher, 524 U.S. at 778.
  3. Lindemann & Grossman, Employment Discrimination Law (1996) note 9, at 812-21; Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997) cert. denied 522 U.S. 997 (1997) (holding that an employer is liable for the harassment perpetrated by one of its supervisors if: supervisor was at a sufficiently high level in the company; or supervisor used his actual or apparent authority to further the harassment, or was otherwise aided in accomplishing the harassment by the existence of the agency relationship; or employer provided no reasonable avenue for complaint; or employer knew or should have known of the harassment but unreasonably failed to stop it); Perry v. Ethan Allen, 115 F.3d 143 (2d Cir. 1997) (holding district court correctly instructed the jury that employer would be liable if management level employees knew or should have known of the alleged sexual harassment and management level employees failed to implement prompt and appropriate corrective action.
  4. Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1034-1035 (7th Cir. 1998).
  5. See Noviello v. City of Boston, 398 F.3d 76, 96 & n.5 (1st Cir. 2005); Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th Cir. 2004).
  6. See Griffin v. Harrisburg Property Servs., 421 Fed. Appx. 204, 209 (3d Cir. 2011); Stevens v. U.S. Postal Serv., 21 Fed. Appx. 261, 263-264 (6th Cir. 2001).
  7. In Mack v. Otis Elevator, 326 F.3d 116, 126 (2d Cir. 2003), cert. denied, 540 U.S. 1016 (2003) the court held the vicarious employer liable for harassment committed by a 'mechanic in charge' who 'exercised the authority to make and oversee the daily work assignments of the mechanics and the mechanics' helpers.' The court concluded that the Seventh Circuit's rule, simply focusing on 'whether the employer gave the employee the authority to make economic decisions concerning his or her subordinates,' was too narrow. See Whitten v. Fred's, 601 F.3d 231 (4th Cir. 2010); McGinest v. GTE Service, 360 F.3d 1103, 1119 n.13 (9th Cir. 2004) (the court held that 'the authority to demand obedience from an employee' makes a harasser a supervisor under Faragher/Ellerth.); Smith v. City of Oklahoma City, 64 Fed. Appx. 122 127 (10th Cir. 2003).
  8. Vance v. Ball State University, 2008 WL 4247836 (S.D.Ind. 2008).
  9. Vance v. Ball State University, 646 F.3d 461, 469 (7th Cir. 2011).
  10. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 76 (1986).
  11. Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 510 (7th Cir. 2004).
  12. Respondent's Brief in Opposition, 2012 WL 135303, p. 16.