Faragher v. City of Boca Raton

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-4878

D. C. Docket No. 92-8010-CIV-SH

BETH ANN FARAGHER, NANCY EWANCHEW,

Plaintiffs-Appellants-

Cross-Appellees,

versus

CITY OF BOCA RATON, a political subdivision

of the State of Florida,

Defendant-Appellee-

Cross-Appellant,

BILL TERRY, DAVID SILVERMAN,

Defendants-Appellees.

Appeals from the United States District Court

for the Southern District of Florida

(February 8, 1996)

Before COX, Circuit Judge, DYER, Senior Circuit Judge, and

GOETTEL*, Senior District Judge.

COX, Circuit Judge:

*

Honorable Gerard L. Goettel, Senior U. S. District Judge for

the Southern District of New York, sitting by designation.

In this case we must decide several important questions

regarding hostile work environment sexual harassment under

Title VII.

I. FACTS1

Beth Ann Faragher and Nancy Ewanchew worked as ocean

lifeguards for defendant City of Boca Raton, Florida (the "City"),

in the Parks and Recreation Department's Marine Safety Section.

Only four to six of the forty to fifty lifeguards were female. The

Marine Safety Headquarters was a small, one-story building with

limited facilities, and all of the lifeguards shared the same

locker room and shower. The tight quarters and high male-female

ratio apparently led to a rambunctious atmosphere among the

lifeguards.

During the relevant time frame, defendants Bill Terry and

David Silverman acted as supervisors of the ocean lifeguards, Terry

as Chief of the Marine Safety Section and Silverman as a Marine

Safety lieutenant and then captain. Terry had the authority to

supervise all aspects of the lifeguards' work assignments; to give

oral reprimands and place reports of disciplinary actions in

personnel files; and to interview and select new lifeguards,

subject to approval by higher management. Silverman had

supervisory authority over the lifeguards' daily duties, including

designating work assignments and supervising physical fitness

1

The facts are drawn from the district court's Findings of

Fact.

2

routines.

The Marine Safety Section was organized according to a clear

chain of command. Lifeguards reported to Marine Safety

lieutenants, and above them to captains; the captains reported

directly to the Chief of the Marine Safety Section, who was

directly supervised by the Recreation Superintendent; the

Recreation Superintendent reported to the Director of Parks and

Recreation, who reported to the City Manager. Lifeguards had

almost no contact with City officials such as the Recreation

Superintendent. Marine Safety Headquarters was in a remote

location, far away from City Hall.

Marine Safety Chief Terry subjected both Faragher and Ewanchew

to uninvited and offensive touching, and Ewanchew to offensive

language as well. For example, Terry would put his arm around

Faragher and rest his hand on her buttock. In a particularly

egregious example of Terry's touching, Terry pressed himself

against Ewanchew's buttocks and simulated sexual movement while the

two were at the water fountain. Other female lifeguards similarly

were subjected to Terry's uninvited and offensive touching and to

his demeaning and offensive comments.

Lieutenant Silverman made offensive comments and gestures to

both Faragher and Ewanchew. For example, in the presence of both

Faragher and Ewanchew, as well as other lifeguards, Silverman

engaged in a pantomime depicting cunnilingus. Examples of

Silverman's offensive comments include saying to Faragher, after

tackling her, "If you had tits I would do you in a minute," and to

3

Ewanchew, "There are a lot of tits on the beach today." Silverman

also made offensive remarks to other female lifeguards.

Neither Ewanchew nor Faragher complained to Parks and

Recreation Department management about Terry's and Silverman's

conduct while they were employed with the City or when they

resigned. However, they both spoke about Terry's and Silverman's

conduct with one of their supervisors, Marine Safety Lieutenant and

Training Captain Robert Gordon. In fact, most of the female

lifeguards complained to Gordon about Silverman's language and

conduct. The lifeguards did not speak with Gordon on a subordinate

to superior basis; they spoke with him because they held him in

high repute. Gordon did not report the complaints to his

supervisor, Terry, or to any other City official.

Ewanchew resigned from her position with the City in April of

1989, saying that she was leaving because she had found a better

job. At some time after her resignation, Ewanchew visited Terry

and requested re-employment on a part-time basis. She was not re-

employed. Faragher resigned in June of 1990 to attend law school.

Her decision to leave was unrelated to the alleged sexual

harassment. She did not discourage her sister from applying for a

lifeguard position with the City.

In April of 1990, Ewanchew wrote a letter to the City's

Director of Personnel complaining that she and other female

lifeguards had been sexually harassed by Terry and Silverman while

she was employed by the City. The City did not know of Terry's and

Silverman's conduct until receiving Ewanchew's letter. The City

4

then investigated Ewanchew's complaint, determining that Terry and

Silverman had engaged in some inappropriate conduct. The City

reprimanded and disciplined them both.

II. PROCEDURAL BACKGROUND

In 1992, Faragher and Ewanchew sued the City, Terry, and

Silverman. Faragher sued the City for sexual harassment under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq. (Count I). Faragher and Ewanchew each sued Terry and

Silverman for sexual harassment under 42 U.S.C. § 1983 (Counts II

and III). Faragher and Ewanchew also asserted pendent state law

claims. Faragher and Ewanchew each sued Terry for battery (Counts

IV and V) and the City for negligent retention and supervision of

Terry (Counts VI and VII). The district court held a non-jury

trial on all claims.

The district court entered judgment for Faragher on her Title

VII claim against the City, awarding her $1 in nominal damages.

The court held that Terry's and Silverman's offensive conduct was

sufficiently severe and pervasive to alter the conditions of

Faragher's employment by creating a hostile work environment. The

court held that the City was directly liable for Terry's and

Silverman's conduct under agency principles based on Terry's and

Silverman's supervisory authority and the overall workplace

structure. In addition, the court held that the City was

indirectly liable for Terry's and Silverman's offensive conduct

because the court's finding that the conduct was severe and

5

pervasive "supports an inference of knowledge, or constructive

knowledge, on the part of the City regarding Terry's and

Silverman's sexual harassment."

The district court entered judgment for Faragher on her § 1983

claim against Terry and Silverman. Noting that the Eleventh

Circuit has not recognized a § 1983 cause of action for sexual

harassment, the court held that such a cause of action is

cognizable based on the weight of authority from other circuits. 2

The court found that Terry and Silverman acted under color of state

law based on their supervisory authority. The court found that

Faragher had proved her § 1983 claim by showing actionable sexual

harassment under Title VII and intent to harass based on membership

in a particular class, i.e., females. The court rejected Terry's

qualified immunity defense. The court awarded Faragher $10,000 in

compensatory damages against Terry and Silverman, jointly and

severally.

The district court entered judgment for Terry and Silverman on

Ewanchew's § 1983 claim. The court held that Ewanchew did not

prove her § 1983 claim because she failed to show actionable sexual

harassment under Title VII.3 Specifically, the court found that

2

Neither Terry nor Silverman contends on appeal that sexual

harassment is not cognizable under § 1983. We assume for purposes

of this appeal, but do not decide, that a sexual harassment claim

is cognizable under § 1983. The district court held that a sexual

harassment claim under § 1983 has two elements: (1) sexual

harassment, and (2) intent to harass based on membership in a

particular class. The court held that the harassment prong is

satisfied by showing actionable sexual harassment under Title VII.

3

As explained in note 2, the district court held that one

element of a § 1983 sexual harassment claim is showing harassment

6

Ewanchew's request for re-employment after resigning "makes it

illogical to find a perception of hostility in the work environment

on her part." In addition, the court found that Ewanchew's

testimony that Terry's and Silverman's conduct was intolerable at

the time was not credible. The court held that Ewanchew therefore

had not satisfied the requirement that an employee subjectively

perceive the work environment to be abusive. See Harris v.

Forklift Systems, Inc., 114 S.Ct. 367, 370 (1993).

The court entered judgment for Faragher on her battery claim

against Terry and for Ewanchew on her battery claim against Terry.

The court awarded Ewanchew $35,000 in compensatory damages and

$2,000 in punitive damages. Faragher was awarded $500 in punitive

damages.

The court entered judgment for the City on both Faragher's and

Ewanchew's negligent retention claims. The court held that its

finding that the City had constructive notice of Terry's and

Silverman's conduct for purposes of Title VII liability did not

mean that the City had constructive notice of Terry's conduct for

purposes of negligent retention liability. Applying to the City

the reasonable employer standard, the court found insufficient

proof that the City should have known of Terry's conduct before

Ewanchew's letter.

Faragher and Ewanchew appeal. The City cross-appeals.

III. ISSUES ON APPEAL

under Title VII.

7

The issues presented on appeal are: (1) whether, to recover

under Title VII for hostile environment sexual harassment, an

employee must subjectively perceive the work environment to be

abusive at the time that she is employed; (2) whether the district

court erred in relying on conduct of which Faragher was unaware in

determining that Terry's and Silverman's conduct was sufficiently

severe or pervasive to alter the conditions of her employment in

violation of Title VII; (3) whether the district court erred in

finding that Faragher was subjected to an abusive work environment

and perceived the environment to be abusive; (4) whether, under

Title VII, the City may be directly liable for Terry's and

Silverman's hostile environment harassment of Faragher, regardless

of its actual or constructive knowledge of that harassment; (5)

whether, under Title VII, the district court erred in finding that

the City had constructive knowledge of Terry's and Silverman's

conduct based on its pervasiveness; and (6) whether, under Florida

law, the district court erred in finding that the City had no

constructive knowledge of Terry's unfitness for purposes of the

negligent retention claims.

We are not presented with any challenge to the district

court's judgment for Faragher on her § 1983 claim against Terry and

Silverman. Nor are we presented with a challenge to the district

court's judgment for Faragher and Ewanchew on their battery claims

against Terry.

IV. STANDARDS OF REVIEW

8

We review the district court's findings of fact under the

clearly erroneous standard of review. Pullman-Standard v. Swint,

456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789 (1982). The question of

actual or constructive knowledge is an issue of fact reviewed for

clear error. Reich v. Department of Conservation and Natural

Resources, State of Ala., 28 F.3d 1076, 1082 (11th Cir. 1994). We

review the district court's conclusions of law and its application

of law to facts de novo. Massaro v. Mainlands Section 1 & 2 Civic

Assn., Inc., 3 F.3d 1472, 1475 (11th Cir. 1993), cert. denied, __

U.S. __ , 115 S.Ct. 56 (1994).

V. DISCUSSION

A. Ewanchew's Subjective Perception That Work Environment Was

Abusive Under Harris.

Ewanchew contends that the district court erred in holding

that she did not satisfy the subjective prong of the hostile

environment test in Harris v. Forklift Systems , 114 S.Ct. 367

(1993). Under Harris, Title VII is not violated unless the victim

of harassment subjectively perceives the work environment to be

abusive, because otherwise the harassment has not altered the

conditions of the victim's employment. Harris, 114 S.Ct. at 370.

The district court found that Ewanchew did not perceive her work

environment to be abusive because her testimony to that effect was

not credible and because she asked Terry to re-employ her at some

time after she resigned.

Ewanchew approaches the district court's holding that she did

not satisfy Harris from two different angles. First, she argues

9

that the district court's factual finding that she did not perceive

her work environment to be abusive is inconsistent with its finding

that she suffered $35,000 in damages on her battery claim.

According to Ewanchew, the $35,000 damages finding is correct and

leads ineluctably to the conclusion that she perceived her work

environment to be abusive. Ewanchew's second tack is to contend

that the district court erroneously engrafted onto Harris's

subjective prong a requirement for present-sense revulsion.

Harris's subjective prong is satisfied, she argues, by after-the-

fact realization of the offensiveness of the perpetrator's conduct.

Terry responds to both of Ewanchew's arguments by contending that

the district court's finding is not clearly erroneous.

Ewanchew has not demonstrated that the district court's

factual findings are inconsistent. On Ewanchew's battery claim,

the court found that Terry's offensive touching caused Ewanchew

$35,000 in damages for psychological or emotional injury. A

finding of damages resulting from an offensive touching--even if

the touching, when combined with other conduct, constitutes sexual

harassment--does not necessarily mean that the victim of the

touching perceived her work environment to be abusive. Although

the district court makes no specific finding as to when Ewanchew

suffered damages, Ewanchew's damages from the battery seem to have

occurred some time after she resigned from her lifeguard position

with the City. In Ewanchew's Reply Brief and at oral argument,

Ewanchew's counsel conceded that Ewanchew suffered a delayed

reaction to the offensive conduct, but argued that Ewanchew's

10

delayed reaction satisfies Harris. Notably, Ewanchew has pointed

to no evidence in the record indicating that she suffered damages

from the battery before she resigned.

Under this view of the battery damages award, the district

court's findings are not inconsistent. The district court

reasonably could have found that Ewanchew did not view her work

environment as abusive but, after resigning, suffered emotional or

psychological trauma from the offensive touchings. Thus, it is not

inconsistent, under this view of the facts, to award damages on

Ewanchew's battery claim while finding that Ewanchew did not

satisfy Harris, at least as the district court read Harris.

Nor is the district court's finding that Ewanchew did not

perceive her work environment to be abusive clearly erroneous. The

district court found "not credible [Ewanchew's] present assertion

that she found [Terry's and Silverman's] conduct intolerable,

then." Furthermore, the court found that Ewanchew "appears to have

tolerated such conduct not because she felt she had to but because

it wasn't that important to her." In addition to these findings

based on the credibility of Ewanchew's testimony, the court

determined that it would be illogical to find a perception of

hostility on Ewanchew's part in light of her request for a part-

time job after she left the City's employ.

Ewanchew contends that, even if she did not perceive her work

environment to be abusive at the time, she satisfied Harris's

subjective prong so long as she felt offended or abused after the

fact. The parties have not pointed us to any federal case

11

addressing after-the-fact perceptions of abuse under Harris.4

According to Ewanchew, the subjective prong's raison d'etre is

satisfied by after-the-fact realization of the offensiveness of the

perpetrator's conduct. The subjective prong, she argues, ensures

that the alleged conduct injured this particular plaintiff. We

cannot agree that this is the subjective prong's only purpose.

Harris's subjective prong ensures that the alleged conduct

altered the conditions of the plaintiff's employment. See Harris,

114 S.Ct. at 370. Otherwise, Title VII is not implicated. Title

VII makes it unlawful "to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's ... sex." 42 U.S.C.

§ 2000e-2(a)(1). Sexual harassment constitutes discrimination

based on sex but is actionable under Title VII only if it alters

the terms or conditions of the victim's employment. Meritor

Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405

(1986). Hence Harris's subjective prong: "if the victim does not

subjectively perceive the environment to be abusive, the conduct

has not actually altered the conditions of the victim's employment,

and there is no Title VII violation." Harris, 114 S.Ct. at 370.

Under Harris, then, Title VII is not violated when the victim

of harassment does not perceive her work environment to be abusive

at the time that she is employed. But cf. Kimzey v. Wal-Mart

4

Ewanchew cites two cases from other circuits interpreting

Harris's subjective prong but neither addresses after-the-fact

perceptions of abuse. See Dey v. Colt Construction & Development

Co., 28 F.3d 1446 (7th Cir. 1994); King v. Hillen, 21 F.3d 1572

(Fed. Cir. 1994).

12

Stores, Inc., -- F.Supp. --, 1995 WL 691953 (W.D. Mo. 1995)

(interpreting Harris as not requiring well-defined, subjective

belief of hostility at exact moment an incident occurs). An

employee's conditions of employment are not affected by what

happens after she resigns. After-the-fact realization of the

offensiveness of conduct thus does not satisfy Harris; it is

irrelevant to whether the employee's conditions of employment were

altered. Thus, contrary to Ewanchew's contention, the district

court did not err in requiring Ewanchew to prove that she perceived

her work environment to be abusive during the term of her

employment. Because she did not perceive her environment to be

abusive, Terry's and Silverman's conduct did not alter the

conditions of her employment and, therefore, she cannot recover for

their conduct under Title VII.

B. Whether Terry's and Silverman's Conduct Was Sufficiently

Severe and Pervasive To Alter Faragher's Conditions of

Employment.

On its cross-appeal, the City contends that the district court

erred in relying on conduct of which Faragher was unaware in

determining that Terry's and Silverman's conduct was so pervasive

and severe as to alter Faragher's conditions of employment.

Faragher does not contend that the district court properly relied

on conduct of which Faragher was unaware.

The district court's opinion is somewhat ambiguous as to this

issue, but parts of the opinion make it at least arguable that the

district court relied on conduct of which Faragher was unaware in

13

determining that Terry's and Silverman's conduct was so pervasive

and severe as to alter Faragher's conditions of employment. The

district court erred to the extent that, in making this

determination, it relied on conduct of which Faragher was unaware.

See Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th

Cir. 1995); see also Hirase-Doi v. U.S. West Communications, Inc.,

61 F.3d 777, 782 (10th Cir. 1995). In a case of hostile

environment sexual harassment, an employee's conditions of

employment cannot be altered by conduct of which she is unaware.

Moreover, conduct of which an employee is unaware cannot contribute

to her subjective view of the work environment as hostile.

Edwards, 49 F.3d at 1522; Hirase-Doi, 61 F.3d at 782.5

The City argues that, if the district court had considered

only conduct of which Faragher was aware, it could not have found

that Faragher was subjected to an abusive work environment. The

City further contends that the district court erred in finding that

Faragher subjectively perceived her work environment as hostile or

abusive in light of her apparent nonchalance toward her

environment, her failure to complain, and her failure to caution

her sister about applying for a job as a lifeguard with the City.

Faragher responds that the evidence supports the district court's

findings that Terry's and Silverman's conduct, as known to

Faragher, was sufficiently severe and pervasive to create an

abusive work environment, and that Faragher subjectively perceived

5

Of course, evidence of harassment of which Faragher was

unaware may be relevant to the extent that it corroborates her

allegations.

14

her environment as abusive.

If, as the City argues, the district court indeed relied on

conduct of which Faragher was unaware in determining that her work

environment was abusive, the extent of the court's reliance on that

conduct is unclear. However, that question need not detain us. We

have no doubt that the district court would have found that

Faragher's work environment was abusive, both objectively and

subjectively, based solely on the conduct of which Faragher was

aware. Indeed, the record suggests that it might have been clear

error for the district court, having credited Faragher's testimony,

to find otherwise.

In determining whether a work environment is abusive or

hostile, the totality of the circumstances must be considered.

Relevant circumstances include: "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." Harris, 114 S.Ct. at 371. Our review of the record

reveals that Faragher was subjected to frequent and severe

discriminatory conduct by Terry and Silverman. While some of the

conduct might be characterized as "mere offensive utterance," other

conduct was physically threatening (for example, being tackled by

Silverman) and humiliating (for example, Silverman's comments about

Faragher's body, the terms he used to describe women, and his

pantomime of oral sex). We need not catalogue all of the conduct

to which Faragher was subjected, for we have no trouble concluding

15

that Terry's and Silverman's conduct, as known to Faragher, was

severe and pervasive enough to create an objectively abusive work

environment.

We also conclude that the district court's finding that

Faragher subjectively perceived her work environment to be abusive

is not clearly erroneous. The district court based its finding

largely on the credibility of Faragher's testimony. The court

considered Faragher's failure to complain or to caution her sister

about applying for a lifeguard position, but concluded that other

factors explained her actions. We cannot say that the district

court clearly erred in its resolution of this issue.

C. Direct Liability of City for Hostile Environment Sexual

Harassment.

The City also contends on its cross-appeal that the district

court erred as a matter of law in holding the City directly liable

for Terry's and Silverman's conduct under Title VII, without regard

to whether the City had actual or constructive knowledge of the

conduct. Citing Steele v. Offshore Shipbuilding, Inc. , 867 F.2d

1311 (11th Cir. 1989), the City argues that it may be liable under

Title VII for hostile environment sexual harassment only indirectly

through respondeat superior; that is, only if it knew or should

have known of the sexual harassment and failed to take prompt

remedial action. Faragher concedes that, underSteele, the City is

not directly liable for Terry's and Silverman's conduct.

This is a pure hostile environment case. The district court

acknowledged our admonition in Steele that holding employers

16

strictly liable for a supervisor's sexual harassment is illogical

in a pure hostile environment setting. The court expressly found

that the City had no actual knowledge of Terry's and Silverman's

sexual harassment before receipt of Ewanchew's letter.

Nevertheless, relying on our decisions in Huddleston and Vance, the

court held the City directly liable for Terry's and Silverman's

conduct because it found that they were the City's agents. See

Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1512 (11th

Cir. 1989), overruled on other grounds, Patterson v. McLean Credit

Union, 491 U.S. 164, 109 S.Ct. 2363 (1989); Huddleston v. Roger

Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir. 1988). It held

that Faragher need not show either actual or constructive notice to

the City, notwithstanding our statement in Steele that corporate

liability exists in a pure hostile environment case only if the

employer knew or should have known of the harassment. Steele, 867

F.2d at 1316.

The Supreme Court has declined to issue a definitive rule as

to when a corporate defendant is liable for hostile environment

sexual harassment under Title VII. Meritor, 477 U.S. at 72, 106

S.Ct. at 2408. From Congress's decision to define "employer" under

Title VII to include the employer's agents, 42 U.S.C. § 2000e(b),

however, the Court inferred that Congress intended for courts to

look to common law agency principles in Title VII sexual harassment

cases. Meritor, 477 U.S. at 72, 106 S.Ct. at 2408. This circuit

has applied agency principles to the issue of corporate liability

for sexual harassment on numerous occasions, including in Steele,

17

Vance, and Huddleston.

Our cases establish the following rules. An employer is

directly liable for sexual harassment when the harasser is acting

as the employer's agent. Steele, 867 F.2d at 1316 n.1; Vance, 863

F.2d at 1512; Huddleston, 830 F.2d at 904; Sparks v. Pilot Freight

Carriers, Inc., 830 F.2d 1554, 1558 (11th Cir. 1987). Thus, an

employer is directly liable for sexual harassment by a supervisor

or other employee acting within the scope of his employment. See

Sparks, 830 F.2d at 1558 (citing Restatement (Second) of Agency

§ 219(1)). An employer also is directly liable, under agency

principles, for sexual harassment by a supervisor or other employee

acting outside the scope of his employment if the supervisor or

employee was aided in accomplishing the harassment by the existence

of the agency relationship. Id. at 1559-60 (citing Restatement

(Second) of Agency § 219(2)(d)).6

Applying these agency principles, we have held that an

employer is strictly liable for quid pro quo sexual harassment.

Henson v. City of Dundee, 682 F.2d 897, 909-910 (11th Cir. 1982).

As we explained in Steele, a supervisor by definition acts as the

company when engaging in quid pro quo harassment. Steele, 867 F.2d

at 1316. The supervisor acts within the scope of his actual or

apparent authority to hire, fire, discipline, or promote.

Moreover, the supervisor uses the means furnished to him by the

6

Accord Gary v. Long, 59 F.3d 1391, 1397 (D.C. Cir.), cert.

denied 116 S.Ct. 569 (1995); Hirase-Doi, 61 F.3d 777, 783 (10th

Cir. 1995); Karibian v. Columbia University, 14 F.3d 773, 780 (2nd

Cir.), cert. denied 114 S.Ct. 2693 (1994); Bouton v. BMW of North

America, 29 F.3d 103, 106 (3rd Cir. 1994).

18

company to accomplish the harassment when using his apparent or

actual authority to extort sexual consideration from the victim.

Id. (quoting Henson, 682 F.2d at 910).

Whereas an employer is always directly liable for quid pro quo

harassment, an employer rarely will be directly liable for hostile

environment harassment; rather, liability will be indirect.7

Viewed under agency principles, these seemingly disparate results

make sense. A supervisor or other employee typically does not act

as the company when he subjects an employee to a hostile work

environment. Hence the distinction between liability for quid pro

quo harassment and liability for hostile environment harassment:

Strict liability is illogical in a pure hostile

environment setting. In a hostile environment case, no

quid pro quo exists. The supervisor does not act as the

company; the supervisor acts outside "the scope of actual

or apparent authority to hire, fire, discipline, or

promote." Corporate liability, therefore, exists only

through respondeat superior; liability exists only where

the corporate defendant knew or should have known of the

harassment and failed to take prompt remedial action

against the supervisor.

Id.

With respect to employer liability for pure hostile

environment harassment, Steele and Vance appear to conflict.8

Steele precludes direct employer liability in a pure hostile

environment case, allowing only indirect liability if the employer

knew or should have known of the harassment and failed to take

7

We discuss indirect employer liability in section V.D.

8

Steele and Vance, decisions issued almost contemporaneously,

were the first cases in which we addressed the standard for

employer liability for pure hostile environment harassment. See

Steele, 867 F.2d at 1317; Vance, 863 F.2d at 1515.

19

prompt remedial action. Id. Vance, on the other hand, allows

direct employer liability in a hostile environment case if the

harasser acted as the employer's agent. Vance, 863 F.2d at 1514-

15.

The district court correctly reconciled this precedent in

holding that an employer may be liable in a hostile environment

case if either (1) the employer knew or should have known of the

harassment and failed to take prompt remedial action, or (2) the

harasser acted as the employer's agent. However, as we explain

below, only in an exceptional case will a harasser act as the

employer's agent in creating a hostile work environment. This is

not such a case. The district court erred in holding that Terry

and Silverman acted as the City's agents in harassing Faragher.

The district court found that Terry and Silverman were the

City's agents based on their supervisory authority and the overall

structure of the workplace. We agree that Terry and Silverman were

the City's agents for some purposes. But the relevant inquiry is

whether they were acting as the City's agents in subjecting

Faragher to a hostile work environment. See Sparks, 830 F.2d at

1558-59 (analyzing not whether the harasser was an agent generally

but whether harasser acted as an agent when he harassed victim).

Faragher does not contend that Terry and Silverman were acting

within the scope of their employment when they made offensive

remarks and gestures and touched her. And we have found no record

evidence suggesting that they were acting within the scope of their

20

employment when they harassed Faragher.9

The district court relied on Vance in finding that Terry and

Silverman were the City's agents for direct liability purposes.

Plaintiff in Vance sued her employer for racial discrimination

under 42 U.S.C. § 1981; the legal elements of a harassment claim

under § 1981 were the same as they are under Title VII. Vance, 863

F.2d at 1509 n.3. She alleged, inter alia, that she was subjected

to a hostile work environment and discriminatorily disciplined

because of her race. Id. at 1511. The district court correctly

instructed the jury that the employer was liable if a supervisor

acting within the scope of his employment, as an agent of the

employer, harassed plaintiff. Id. at 1514 n.10. The jury returned

a verdict for plaintiff, but the district court granted the

employer's motion for judgment notwithstanding the verdict. The

district court held, inter alia, that the employer could not be

held liable because it had adequate grievance procedures and

plaintiff had failed to give the employer notice of the harassment.

Id. at 1512. We reversed, holding that the employer's grievance

procedures did not, as a matter of law, insulate it from liability.

9

This case is thus distinguishable from Huddleston, on which

the district court relied in part in holding the City directly

liable. In Huddleston, the harasser berated the victim for her job

performance in the course of creating a hostile work environment.

Huddleston, 845 F.2d at 904. Thus, the harasser acted within his

supervisory authority to hire, fire, discipline, or promote. See

Steele, 867 F.2d at 1317 n.2. Here, however, there is no evidence

that Terry or Silverman acted within their supervisory authority in

creating a hostile work environment. Significantly, inHuddleston,

the harasser's conduct constituted quid pro quo harassment as well

as hostile environment harassment. See id. Thus, by definition

the harasser acted as the company. Here, though, only hostile

environment sexual harassment is alleged.

21

Id. at 1514.

We also held that an employer may be directly liable for the

existence of a hostile work environment. Id. at 1514-15.10 Because

plaintiff in Vance alleged that her supervisor was an agent of the

employer for direct employer liability purposes, we examined

whether the evidence was sufficient for the jury to find the

employer directly liable through its agent, plaintiff's

supervisor.11 Id. We held that a reasonable jury could conclude

from the evidence that the supervisor was acting as the employer's

agent in creating the hostile work environment. Id. at 1515.

In so holding, we listed several factors relevant to whether

a harasser is acting as the employer's agent in creating a hostile

work environment: the supervisor's direct authority over the

plaintiff, the overall structure of the workplace, and the relative

positions of the parties. Id. The district court examined these

same factors in this case in determining that Terry and Silverman

were the City's agents. However, further scrutiny ofVance reveals

that, while those factors were directly relevant to the allegations

in Vance, they are not dispositive here.

10

We cited Huddleston for the rule that when the harasser acts

as an agent of the employer, the harasser is the employer for

purposes of Title VII, and thus the corporate employer is directly

liable. Id. at 1514. As explained in note 9, the conduct in

Huddleston constituted both hostile environment and quid pro quo

harassment.

11

Though we focused in our opinion on whether the jury could

find that plaintiff's first supervisor, Wagner, acted as the

employer's agent, the evidence also showed that other supervisors

acted as the employer's agents in discriminatorily disciplining

plaintiff. See id. at 1507-08, 1511.

22

In Vance, we based our agency analysis largely on the agency

analysis in Hamilton v. Rogers, 791 F.2d 439 (5th Cir. 1986). See

Vance, 863 F.2d at 1515. In Hamilton, the Fifth Circuit held that

two intermediate level supervisors were agents of the fire

department under Title VII because "[t]hey had authority over

matters such as car assignments and the staffing of shifts, and

they wielded this authority to Hamilton's detriment. Even more

important, they filed the critical reports that led to Hamilton's

1982 suspension." Hamilton, 791 F.2d at 442 (emphasis added). The

supervisors had denied Hamilton a car assignment, scheduled him for

the night shift, and given him poor evaluations, all for racially

discriminatory reasons. Id. Thus, the supervisors' authority over

Hamilton and the structure of the workplace showed that the

supervisors were acting within the scope of their employment in

violating Title VII.12

Similarly, in Vance, plaintiff had presented evidence from

which the properly instructed jury could infer that the supervisor

was acting within the scope of his employment when he created the

hostile work environment. The evidence suggested that the

supervisor had hung a noose over plaintiff's work station. Vance,

863 F.2d at 1506. The supervisor testified that he had constructed

12

Hamilton involved allegations of discrimination in addition

to just the creation of a hostile work environment. The Fifth

Circuit seems to have predicated the employer's liability on

conduct of the supervisors that did not form part of the hostile

environment allegations. See id. Thus, it is not at all clear

that the supervisors' authority and the overall structure of the

workplace were relevant to the fire department's liability for the

hostile work environment.

23

a device which looked like a noose, but explained "that it had been

designed to desheathe cable to increase productivity." Id. We

held that a jury could conclude from this evidence that the

supervisor acted as the employer's agent in creating the hostile

environment. Id. at 1515. Viewed in light of Hamilton, it is

evident that Vance's focus on the supervisor's authority (to

discipline employees, handle union grievance proceedings, and make

personnel changes) and the overall structure of the workplace was

aimed at determining whether the supervisor was acting within the

scope of his employment when constructing the device ostensibly

designed to increase productivity.13

Here, the district court mechanically applied the factors

listed in Vance without determining their relevance to whether

Terry and Silverman were acting within the scope of their

employment in harassing Faragher. The harassment here consisted of

offensive comments, gestures, and touching. If, for example, as in

Vance, Terry and Silverman had constructed something offensive and

intimidating to women under the guise of trying to improve

lifeguard performance, then their supervisory and disciplinary

authority would support a finding that they acted as the City's

agents in violating Title VII. But Terry's and Silverman's

13

Plaintiff's claim was based on allegations of discriminatory

discipline as well as the noose incident. Id. at 1511. Though we

did not refer to the discriminatory discipline in finding that the

jury reasonably could conclude that the employer was directly

liable for its supervisors' conduct, the supervisors clearly were

acting within the scope of their employment in taking disciplinary

action against plaintiff. Thus, the employer would have been

directly liable on that basis as well.

24

supervisory and disciplinary authority does not support a finding

that they were acting within the scope of their employment in

subjecting Faragher to offensive language, gestures, and touching.

Thus, the district court erred in holding the City directly liable

for that conduct.

Vance demonstrates that Steele overstates the case in saying

that, in a pure hostile environment setting, an employer may be

liable only when the corporate defendant knew or should have known

of the harassment and failed to take prompt remedial action. An

employer also may be directly liable if, as in Vance, the harasser

acted as the employer's agent in creating the hostile work

environment. Still, Steele accurately describes the rule for

employer liability in the vast majority of hostile environment

cases. Vance's finding of direct employer liability is unlikely to

be replicated in pure hostile environment cases because the facts

of that case were exceptional. Rarely will a supervisor or other

employee act within the scope of his employment in creating a

hostile work environment. In pure hostile work environment cases,

therefore, Steele generally will govern employer liability.14

14

The only other possible ground for the City's direct

liability would be that Terry and Silverman were aided in

accomplishing the harassment by the existence of the agency

relationship. See Sparks, 830 F.2d at 1559-60 (citing Restatement

(Second) of Agency § 219(2)(d)). This basis for direct liability--

like direct liability for acts within the scope of employment--

typically occurs only in quid pro quo harassment cases. For

example, in Sparks, the evidence showed that the harasser used the

authority delegated to him by the company to assist him in the

harassment; he repeatedly reminded the victim that he could fire

her if she refused his advances. Id. at 1560. See also Steele,

867 F.2d at 1317 (limiting holding of Sparks to situations

involving both quid pro quo and hostile environment harassment).

25

D. Indirect Liability of City for Hostile Environment Sexual

Harassment.

The district court found that the City had no actual knowledge

of the sexual harassment but had constructive knowledge due to the

harassment's pervasiveness. The City contends that the district

court's finding that the City had constructive notice of the

harassment is clearly erroneous and, therefore, that the City may

not be held indirectly liable for the harassment. Faragher

responds that the district court's finding that the sexual

harassment was severe and pervasive enough to infer the City's

knowledge is not clearly erroneous.

An employer is indirectly liable for hostile work environment

sexual harassment if the employer knew or should have known of the

harassment and failed to take prompt remedial action. Steele, 867

However, even in a hostile environment case, the existence of the

agency relationship may aid in accomplishing the harassment. See,

e.g., Gary v. Long, 59 F.3d at 1397; Karibian v. Columbia

University, 14 F.3d at 780. We therefore examine whether the

district court's holding may be affirmed on this ground.

The evidence does not support a finding that Terry and

Silverman were aided, within the meaning of the common law, in

their harassment of Faragher by their agency relationship with the

City. As the D.C. Circuit noted, a supervisor is always, in a

sense, aided in accomplishing the tort by the existence of the

agency because his responsibilities include close proximity to and

regular contact with the victim. Gary v. Long, 59 F.3d at 1397.

However, the common law rule does not use "aided" in such a broad

sense. Rather, the employer is liable only if the harassment is

accomplished by an instrumentality of the agency or through conduct

associated with the agency status. Id. In Vance, for example,

although the supervisor's conduct was egregiously offensive, it

could be viewed as conduct associated with the agency status in

that it was purportedly meant to increase productivity. Here,

however, the offensive remarks, gestures, and touching cannot

reasonably be viewed as conduct associated with Terry's and

Silverman's status as agents of the City.

26

F.2d at 1316; Vance, 863 F.2d at 1512; Henson, 682 F.2d at 905.15

A plaintiff can prove an employer's knowledge of harassment by

showing that she complained to higher management. Vance, 863 F.2d

at 1512; Huddleston, 845 F.2d at 904. The district court found

that Faragher did not complain to higher management at the City.

While several lifeguards complained to Lieutenant Gordon, the

district court found that he did not rank as higher management in

the City and, therefore, that notice to him should not be imputed

to the City.16

A plaintiff also can prove an employer's knowledge by showing

that the harassment was pervasive enough to charge the employer

with constructive knowledge. Vance, 863 F.2d at 1512; Huddleston,

845 F.2d at 904; Henson, 682 F.2d at 905. The district court

believed that its finding that the conduct was sufficiently severe

and pervasive to alter the conditions of Faragher's employment

"supports an inference of knowledge, or constructive knowledge, on

the part of the City regarding Terry's and Silverman's sexual

15

Agency principles are the source of indirect employer

liability as well as direct employer liability. If an employer

knows or should know of sexual harassment and fails to remedy the

situation, then the employer is liable for its own negligence. See

Hirase-Doi, 61 F.3d at 783; Bouton, 29 F.3d at 106-07.

16

In its discussion of the City's direct liability for Terry's

and Silverman's conduct, however, the court held that Gordon's

knowledge of Terry's and Silverman's conduct provides a basis for

holding the City liable. This was error. For the City to be

directly liable for Gordon's conduct, Gordon must have harassed

Faragher while acting as the City's agent. However, Gordon did not

harass Faragher; he knew about someone else's inappropriate

conduct. And Gordon did not receive that information as the City's

agent; he received it as someone held in high repute by his

colleagues.

27

harassment, making the City indirectly liable for such conduct."

According to the court, the pervasiveness analysis applicable to

finding that the work environment was abusive is the same as the

analysis required to show the employer's knowledge.

We agree with the district court that the analyses are the

same to the extent that a court must evaluate the totality of the

circumstances both in determining whether the work environment was

abusive and in determining whether the conduct was pervasive enough

to put the employer on notice. See Vance, 863 F.2d at 1513. But

we cannot agree with the district court's apparent belief that

simply because conduct is pervasive enough to create an abusive

work environment the employer should be charged with knowledge of

the conduct. The question of notice to the employer is distinct

from the question of the environment's abusiveness. Thus, the

district court erred to the extent that it conflated the two

inquiries.

The question of constructive knowledge is an issue of fact

reviewed for clear error. Reich, 28 F.3d at 1082. There may be

cases in which it is difficult to draw the line where conduct

becomes so pervasive that the employer should have known about it.

But this is not such a case. The district court expressly found

that the City had no knowledge of Terry's and Silverman's conduct.

Neither the district court nor Faragher has pointed to any factual

basis for concluding that the City should have known of their

conduct. The lifeguards were stationed at a remote location and

had little contact with City officials. The district court clearly

28

erred in finding that the City's knowledge may be inferred solely

from the fact that the conduct was pervasive enough to create an

abusive work environment.

E. Constructive Knowledge of Terry's Unfitness Under Florida

Negligent Retention Law.

Finally, Faragher and Ewanchew contend that the district court

erred in finding that, for purposes of their negligent supervision

claims, the City did not have actual or constructive notice of

Terry's conduct. Our review of the record leads us to agree with

the City that the district court's finding that the City had no

notice of Terry's conduct is not clearly erroneous.

VI. Conclusion

We reverse the district court's judgment for Faragher on her

Title VII sexual harassment claim against the City. In all other

respects, we affirm the district court's judgment.

AFFIRMED IN PART; REVERSED IN PART.

29