explaining that the Far-agher defense, which was “adopted in cases that involved ongoing sexual harassment in a workplace, ... may not protect an employer from automatic liability in cases of single, severe, unan-ticipatable sexual harassment” and that the district court should address that issue on remand
How later courts described this case
- explaining that the Far-agher defense, which was “adopted in cases that involved ongoing sexual harassment in a workplace, ... may not protect an employer from automatic liability in cases of single, severe, unan-ticipatable sexual harassment” and that the district court should address that issue on remand
- noting that Minnesota courts frequently look to Title VII cases when interpreting the MHRA, but finding that the Supreme Court's recent holdings in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 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
- holding that a single severe act of harassment [in this case, a sexual assault] can, without more, constitute a hostile work environment that is actionable under Title VII
- observing that the defense may provide no protection in a case where “the employer learns that the harassment has occurred and fails to take proper remedial action.”
Written by the judges who cited it.
The opinion
RICHARD S. ARNOLD, Circuit Judge,
concurring in the judgment.
I agree that a remand is appropriate in this case, at least to allow the employer to try to prove the new affirmative defense established by the recent Supreme Court opinions in Ellerth and Faragher. There are a few other aspects of today’s opinion, however, with which I am not in entire agreement, and I desire to add a few words of explanation.
First, I have no doubt that a single severe act of sexual harassment can amount to a hostile work environment actionable under Title VII. I see nothing in Ellerth or Faragher to negative this proposition. The Court expresses the fear that employer liability might be automatic if a single severe act is allowed to create liability. This result, the Court says, would be inconsistent with the Supreme Court’s reasons for creating the new affirmative defense. The affirmative defense set out in the two recent Supreme Court opinions, however, is not always a complete defense to liability. It can also be a defense to damages only. See Ellerth, 118 S.Ct. at 2270. If a supervisor abuses his authority to commit a sufficiently severe act of harassment, the employer’s affirmative defense, if established, should serve to reduce the damages, but I don’t understand why it should always erase the tort completely.
Second, I cannot agree that apparent-authority analysis would be inappropriate in the present case. Maybe it’s just a question of words, but if the plaintiff reasonably believed that the supervisor in this case, despite not being any longer in the direct chain of command, still possessed a substantially equivalent power to affect her career, that would be enough, in my view, for Mr. Moreland to be treated as a *600 “supervisor” within the meaning of the new rale. The Court quotes a passage from Ellerth as holding that “[a]pparent authority analysis ... is inappropriate in this context.” Id. at 2268. When the entire paragraph in which this sentence appears is read, however, it seems that the Supreme Court was not laying down a flat rule of law. A fuller quotation from the Ellerth opinion should make this clear:
In the usual case, a supervisor’s harassment involves misuse of actual power, not the false impression of its existence. Apparent authority analysis therefore is inappropriate in this context.
The present case may be an “unusual” one in the terms of this analytical approach. Here, Mr. Moreland was not in the direct chain of command, but he was still a high ranking official in the area of sales, and, as I have said, the plaintiff may reasonably have believed that he had not lost much of his power, if any. It seems to me not inappropriate to characterize this approach as involving the concept of apparent authority. I believe the Court unduly restricts the analysis when it rules apparent authority out as a matter of law.
With these observations, I concur in the judgment remanding this case for further proceedings. ■