ALERT: US Supreme Court Decides Two Sexual Harassment Cases: Defines Employers liability for Supervisory Employees's

On June 26th, the U.S. Supreme Court decided the following two cases:

Burlington Industries v. Ellerth

Facts- The employee, Kimberly Ellerth, worked for Burlington Industries from March 1993-May 1994, as a salesperson in one of Burlington's divisions in Chicago, Ill. During her employment, she claims she was subjected to constant sexual harassment by her supervisor, Ted Slowik. Slowik was a mid-level manager. Burlington has eight divisions, employing more than 22,000 people in 50 plants around the U.S. Slowick was a vice president in one of five business units within one of the divisions. He had authority to make hiring and promotion decisions subject to the approval of his supervisor, who signed the paperwork. Slowik was not Ellerth's immediate supervisor. Ellerth worked in a two person office in Chicago, and she answered to her colleague, who in turn answered to Slowik in New York.

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 her boss. When Ellerth gave no encouragement to remarks Slowik made about her breasts, he told her to "loosen up" and warned her "you know Kim, I could make your life very hard or very easy at Burlington."

In March 1994, Ellerth was being considered for a promotion, Slowik expressed reservations during the promotion interview because she was not "loose enough." The comment was followed by his reaching over and rubbing her knee. 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." In May 1994, Ellerth calls Slowik , asking permission to insert a customer's logo into a fabric sampler. Slowik responded, " I don't have time for you right now, Kim, unless you want to tell me what you're wearing." Ellerth told Slowik she had to go and ended the call. 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 it would make your job a whole heck of a lot easier." A short time later, Ellerth's immediate supervisor cautioned her about returning telephone calls to customers in a prompt fashion. In response Ellerth quit. She faxed a letter giving reasons unrelated to the alleged sexual harassment. About three weeks later, she sent a letter explaining she quit because of Slowik's behavior. During her tenure at Burlington, Ellerth did not in form anyone in authority about Slowik's conduct, despite knowing that Burlington had a policy against Sexual Harassment.

Faragher v. City of Boca Raton

Facts- Between 1985 and 1990, while attending college, 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 the City of Boca Raton, Fla. During this period, Faragher's immediate supervisors were Bill Terry, and David Silverman and Robert Gordon. In June 1990, Faragher resigned. In 1992, Faragher brought an action against Terry Silverman and the City of Boca Raton, asserting claims under Title VII- that Terry Silverman created a hostile work environment at the beach by repeatedly subjecting Faragher and other female lifeguards to uninvited and often offensive touching, by making lewd remarks, and by speaking of women in offensive terms. 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 toilets for a year." In February, 1986, the city adopted a sexual harassment policy, addressed to all employees. The city failed to circulate the policy among employees of the marine safety division, so that Terry Silverman was unaware of it. During Faragher's tenure at the marine safety section, between 4 and 6 of the 40 to 50 lifeguards were women. During that 5yr. period, Terry repeatedly touched the bodies of female employees and without invitation would put his arm around Faragher, with his hand on her buttocks, and once made contact with another female lifeguard in a notion of sexual simulation. He made crude demeaning references to woman generally, and once commented disparagingly on Faragher's shape. During a job interview with a woman hired as a lifeguard, Terry said that the female lifeguards had sex with their male counterparts and asked if she would do the same. 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. Another time, he pantomimed an act of oral sex.

Issue In the Ellerth case: Does an employer have vicarious liability when a supervisor creates an hostile environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat?

Issue in the Faragher case: When may an employer be held liable for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile environment amounting to employment discrimination?

HELD- 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. The defense comprises two necessary elements: