explaining 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 and abusive, and one that the victim in fact did perceive to be so,” considering such factors as 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”
How later courts described this case
- explaining 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 and abusive, and one that the victim in fact did perceive to be so,” considering such factors as 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”
- holding that in a hostile environment claim where no tangible employment action occurs, a defending employer may raise an affirmative defense by proving “(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”
- explaining that Terry had "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," while Silverman was "responsible for making the lifeguards’ daily assignments, and for supervising their work and fitness training"
- holding that although an employer is subject to vicarious liability under Title VII to a victimized employee for an actionable hostile environment created by a supervisor, employer may raise an affirmative defense based on the reasonableness of the employer’s conduct in seeking to prevent and correct harassing conduct and the reasonableness of the employee’s conduct in seeking to avoid harm
Written by the judges who cited it.
Later courts went against this
Questioned by Williams v. Missouri Department of Mental Health, 407 F.3d 972 (2005)
In Todd v. Ortho Biotech, Inc., 175 F.3d 595, 598 (8th Cir.1999), we suggested “that a single severe act of sexual harassment can, without more, constitute a hostile work environment that is actionable under Title VIL” While the issue has not been squarely addressed, “portions of the opinions in' Ellerth and Faragher cast doubt on its resolution.
Questioned by Lori A. TODD, Plaintiff-Appellee, v. ORTHO BIOTECH, INC., Defendant-Appellant, 175 F.3d 595 (1999)
Neither the Supreme Court nor this court has squarely addressed this issue, and portions of the opinions in Ellerth and Faragher cast doubt on its resolution.
Distinguished
Distinguished by C.L.D. v. Wall-Mart Stores, Inc., 79 F. Supp. 2d 1080 (1999)
524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), are inapplicable to MHRA claims to the extent that these cases recognized vicarious liability against an employer in a hostile environment sexual harassment claim based on a supervisor’s conduct).
The opinion
Justice Thomas,
with whom Justice Scalia joins, dissenting.
For the reasons given in my dissenting opinion in Burlington Industries, Inc. v. Ellerth, ante, p. 742, absent an adverse employment consequence, an employer cannot be held vicariously liable if a supervisor creates a hostile work environment. Petitioner suffered no adverse employment consequence; thus the Court of Appeals was correct to hold that the city of Boca Raton (City) is not vicariously liable for the conduct of Chief Terry and Lieutenant Silverman. Because the Court 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 *811 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 808-809. 1 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, 2 or (2) it would not have learned of the harassment even if the policy had been distributed. 3 Petitioner, as the plaintiff, would of course bear the burden of proving the City’s negligence.
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 806. 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 “regulatio[n],” see ante, at 809 — 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 . . . ”).
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 Silver-man once they were brought to his attention. See App. to Pet. for Cert. 80a.
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.