Home » LAW » Burlington v. Ellerth 1998

Burlington v. Ellerth 1998

Syllabus (Cornell University Law School, Legal Information Institute)No. 97–569. Argued April 22, 1998—Decided June 26, 1998


Respondent Kimberly Ellerth quit her job after 15 months as a salesperson in one of petitioner Burlington Industries’ many divisions, allegedly because she had been subjected to constant sexual harassment by one of her supervisors, Ted Slowik. Slowik was a mid-level manager who had authority to hire and promote employees, subject to higher approval, but was not considered a policy-maker. Against a background of repeated boorish and offensive remarks and gestures allegedly made by Slowik, Ellerth places particular emphasis on three incidents where Slowik’s comments could be construed as threats to deny her tangible job benefits. Ellerth refused all of Slowik’s advances, yet suffered no tangible retaliation and was, in fact, promoted once. Moreover, she never informed anyone in authority about Slowik’s conduct, despite knowing Burlington had a policy against sexual harassment. In filing this lawsuit, Ellerth alleged Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq . The District Court granted Burlington summary judgment. The Seventh Circuit en banc reversed in a decision that produced eight separate opinions and no consensus for a controlling rationale. Among other things, those opinions focused on whether Ellerth’s claim could be categorized as one of quid pro quo harassment, and on whether the standard for an employer’s liability on such a claim should be vicarious liability or negligence.

Held: Under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor’s actions, but the employer may interpose an affirmative defense. Pp. 6–21.

(a) The Court assumes an important premise yet to be established: a trier of fact could find in Slowik’s remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. The threats, however, were not carried out. Cases based on carried-out threats are referred to often as “ quid pro quo” cases, as distinct from bothersome attentions or sexual remarks sufficient to create a “hostile work environment.” Those two terms do not appear in Title VII, which forbids only “discriminat[ion] against any individual with respect to his … terms [or] conditions … of employment, because of … sex.” §2000e—2(a)(1). InMeritor Savings Bank, FSB v. Vinson , 477 U. S. 57, this Court distinguished between the two concepts, saying both are cognizable under Title VII, though a hostile environment claim requires harassment that is severe or pervasive. Meritor did not discuss the distinction for its bearing upon an employer’s liability for discrimination, but held, with no further specifics, that agency principles controlled on this point. Id ., at 72. Nevertheless, in Meritor ’s wake, Courts of Appeals held that, if the plaintiff established a quid pro quoclaim, the employer was subject to vicarious liability. This rule encouraged Title VII plaintiffs to state their claims in quid pro quo terms, which in turn put expansive pressure on the definition. For example, the question presented here is phrased as whether Ellerth can state a quid pro quo claim, but the issue of real concern to the parties is whether Burlington has vicarious liability, rather than liability limited to its own negligence. This Court nonetheless believes the two terms are of limited utility. To the extent they illustrate the distinction between cases involving a carried-out threat and offensive conduct in general, they are relevant when there is a threshold question whether a plaintiff can prove discrimination. Hence, Ellerth’s claim involves only unfulfilled threats, so it is a hostile work environment claim requiring a showing of severe or pervasive conduct. This Court accepts the District Court’s finding that Ellerth made such a showing. When discrimination is thus proved, the factors discussed below, not the categories quid pro quo and hostile work environment, control on the issue of vicarious liability. Pp. 6–9.

(b) In deciding whether an employer has vicarious liability in a case such as this, the Court turns to agency law principles, for Title VII defines the term “employer” to include “agents.” §2000e(b). Given this express direction, the Court concludes a uniform and predictable standard must be established as a matter of federal law. The Court relies on the general common law of agency, rather than on the law of any particular State. Community for Creative Non-Violence v. Reid, 490 U. S. 730. The Restatement (Second) of Agency (hereinafter Restatement) is a useful beginning point, although common-law principles may not be wholly transferable to Title VII. See Meritor supra , at 72. Pp. 9–10.

(c) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. Restatement §219(1). Although such torts generally may be either negligent or intentional, sexual harassment under Title VII presupposes intentional conduct. An intentional tort is within the scope of employment when actuated, at least in part, by a purpose to serve the employer. Id., §§228(1)(c), 230. Courts of Appeals have held, however, a supervisor acting out of gender-based animus or a desire to fulfill sexual urges may be actuated by personal motives unrelated and even antithetical to the employer’s objectives. Thus, the general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. Pp. 10–12.

(d) However, scope of employment is not the only basis for employer liability under agency principles. An employer is subject to liability for the torts of its employees acting outside the scope of their employment when, inter alia, the employer itself was negligent or reckless, Restatement §219(2)(b), or the employee purported to act or to speak on behalf of the employer and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation, id., §219(2)(d). An employer is negligent, and therefore subject to liability under §219(2)(b), if it knew or should have known about sexual harassment and failed to stop it. Negligence sets a minimum standard for Title VII liability; but Ellerth seeks to invoke the more stringent standard of vicarious liability. Section 219(2)(d) makes an employer vicariously liable for sexual harassment by an employee who uses apparent authority (the apparent authority standard), or who was “aided in accomplishing the tort by the existence of the agency relation” (the aided in the agency relation standard). Pp. 12–14.

(e) As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from threatening to misuse actual power. Compare Restatement §§6 and 8. Because supervisory harassment cases involve misuse of actual power, not the false impression of its existence, apparent authority analysis is inappropriate. When a party seeks to impose vicarious liability based on an agent’s misuse of delegated authority, the Restatement’s aided in the agency relation rule provides the appropriate analysis. P. 14.

(f) That rule requires the existence of something more than the employment relation itself because, in a sense, most workplace tortfeasors, whether supervisors or co-workers, are aided in accomplishing their tortious objective by the employment relation: Proximity and regular contact afford a captive pool of potential victims. Such an additional aid exists when a supervisor subjects a subordinate to a significant, tangible employment action, i.e., a significant change in employment status, such as discharge, demotion, or undesirable reassignment. Every Federal Court of Appeals to have considered the question has correctly found vicarious liability in that circumstance. This Court imports the significant, tangible employment action concept for resolution of the vicarious liability issue considered here. An employer is therefore subject to vicarious liability for such actions. However, where, as here, there is no tangible employment action, it is not obvious the agency relationship aids in commission of the tort. Moreover, Meritor holds that agency principles constrain the imposition of employer liability for supervisor harassment. Limiting employer liability is also consistent with Title VII’s purpose to the extent it would encourage the creation and use of anti-harassment policies and grievance procedures. Thus, in order to accommodate the agency principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees, the Court adopts, in this case and in Faragher v. Boca Raton post, p. ___, the following holding: 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, see Fed. Rule. Civ. Proc. 8(c). The defense comprises two necessary elements: (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. While proof that an employer had promulgated an antiharassment policy with a complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action. Pp. 15–20.

(g) Given the Court’s explanation that the labels quid pro quo and hostile work environment are not controlling for employer-liability purposes, Ellerth should have an adequate opportunity on remand to prove she has a claim which would result in vicarious liability. Although she has not alleged she suffered a tangible employment action at Slowik’s hands, which would deprive Burlington of the affirmative defense, this is not dispositive. In light of the Court’s decision, Burlington is still subject to vicarious liability for Slowik’s activity, but should have an opportunity to assert and prove the affirmative defense. Pp. 20–21.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Souter, and Breyer, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment.Thomas, J., filed a dissenting opinion, in which Scalia, J., joined.

“In a 7-to-2 opinion, the Court held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority. In cases where harassed employee’s suffer no job-related consequences, employers may defend themselves against liability by showing that they quickly acted to prevent and correct any harassing behavior and that the harassed employee failed to utilize their employer’s protection. Such a defense, however, in[S] not available when the alleged harassment culminates in an employment action, such as Ellerth’s.” [OYEZ]


3 Comments

  1. In this case, Kimberly Ellerth left her job with Burlington Industries because of sexual harassment that she experienced from her supervisor Ted Slowik. She did not initially report this harassment and later went on to sue the employer, Burlington Industries, for her having to leave. The Court ruled in her favor, claiming that the employer itself is to be held accountable for the actions of its employees, especially those in a higher position over others. In this case, Burlington is responsible for Slowik’s actions against Ellerth, and subsequently are responsible for Ellerth having to leave due to the hostile work environment.

  2. In this case, Ellerth had quit her job at Burlington Industries because of sexual harassment but did not report his behavior and she sued the company. The court decided that employers are liable for their employees who create hostile conditions for those they have authority over. The decision allowed employees to avoid showing their employer was responsible for the authority-holding employee’s discriminatory actions.

  3. Desiree EstradaMay 4, 2021
    In this case the question is can an employee who refuses the unwelcome and threatening sexual advances, who does not suffer tangible consequences recover under title VII of the Civil Rights Act of 1964. In Burlington v. Ellerth, Ellerth had worked for her employer’s (Burlington) until she quit after her 15 months there due to Slotwik (supervisor’s) relentless sexual harassment. Despite the lack of tangible job consequences employers should be held liable for their supervisors.
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    Matt Springer
    Matt SpringerApr 30, 2021
    In Burlington v. Ellerth (1998), Kimberly B. Ellerth quit working at Burlington Industries after a year because she allegedly suffered sexual harassment by her supervisor, Ted Slowik. Despite her refusals of Slowik’s advances Ellerth did not suffer any tangible retaliation and was, in fact, promoted once. Moreover, while she remained silent about Slowik’s conduct despite her knowledge of Burlington’s policy against sexual harassment. The CQ of this case is Can an employee, who despite refusing sexually harassing advances by a supervisor suffers no adverse job-related consequences, recover against an employer under Title VII of the Civil Rights Acts of 1964, without showing that the employer was responsible for the supervisor’s harassing conduct? The Court voted Yes, in a seven to two, because they held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority
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    Grace Castillo Rojo Moreno
    Grace Castillo Rojo MorenoApr 27, 2021
    I agree with the ruling because employers are responsible for their own supervisors actions towards their employees especially if they are creating a hostile environment. On the other hand, these supervisors should also take responsibility of their actions even more that the own company.
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    Ben Lee
    Ben LeeApr 22, 2021
    The Court found that Corporations are vicariously liable for the actions of their employees when it relates to sexual harassment claims. However, corporations may divorce liability if they have reasonable preventative measures reporting systems for sexual assault, and the employee unreasonably failed to take advantage of these measures.
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    Ana Al Saad
    Ana Al SaadApr 16, 2021
    In a 7-2 decision, the Court ruled that employers are liable for supervisors who create a hostile environment. It is the employers responsibility to protect their employees and if they fail to do so, they should be held accountable.
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    Catherine Ortega
    Catherine OrtegaApr 15, 2021
    The EEOC’s “knew or should have known” standard to determine employer liability seems fair to me. It allows the people who didn’t report inappropriate behavior before quitting to have a solid chance at convicting their abusers. This is one of those cases in which it’s a slippery slope with no one to bear witness to abuses, which is why I believe that the Court refrained from ruling her case, rather that they cleared up some uncertainty for the lower court to make a better judgement. They took the opportunity to make strict guidelines for how employer liability would be determines in a variety of cases concerning sexual harrassment in the workplace.

    A couple of the things that the Court cleared up is what would account as employer responsibility over a similar situation. First, if a superior is the abuser then they have the ability to use company authority to threaten the position of the victim in question. If the superior does use their position of power to enact quid pro quo then the employer assumes liability. BUT, the employer can avoid liability if they either took steps to stop the harrassment, or if the plaintiff failed to use the resources available to them.. Due to the fact that the plaintiff in the case failed to make a complaint, the Court sent this ruling down to the lower court to handle it accordingly.

    There was something to do with “Affirmative Defense” which I believe are the steps that the employer could take to plead their case and avoid liability.
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    Nizar Quafisheh
    Nizar QuafishehApr 15, 2021
    I think it is definitely important for employers to be held liable for the actions of their supervisors and other employees, and they also have the responsibility to believe the victims who go to them and report such incidents. Therefore I agree with the SCOTUS ruling, as understanding that it is employers who have the most power in this situation, it should be their responsibility to use that power to protect their employees.
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    Brianna Moling
    Brianna MolingApr 15, 2021
    In this case the Court ruled in a 7-2 decision that employers are liable for supervisors who create hostile working conditions for those whom they supervise. I agree with this ruling because employers should be responsible for the actions of the supervisors they are hiring and whether their actions are appropriate or whether they are creating a hostile environment.
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    Emma Floyd
    Emma FloydApr 14, 2021
    In this case, the Court held that employers are liable for supervisors or other agents of authority within a company acting to create a hostile environment. Supervisors are empowered by the company, and, therefore, actions taken by the supervisor are actions taken by the company. I completely agree with the Court. It is the responsibility of the company to empower people who aren’t going to sexually harass other employees. Otherwise they are just enablers.
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    Denice Bernal Dominguez
    Denice Bernal DominguezApr 14, 2021
    This case brings up the concept of vicarious liability. Even though the plaintiff was promoted the working conditions must have been so unbearable that she had to quit. The negligence of the company allowed the behavior of their supervisors go on which lead the work environment that surrounded the Plaintiff. Now a day’s whenever we a person gets hired they have to go through a sex harassments prevention course. This is important in order to protect the rights of all the employees to have a safe environment.
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    Tanmayi Kadamuddi
    Tanmayi KadamuddiApr 14, 2021
    Really like that employers are being held accountable here! Employers are responsible for hiring and thus liable for supervisors that create hostile work environments.
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    Arnold Brown
    Arnold BrownApr 14, 2021
    The court ruled that the employer can be subject to liability to a employee experiencing sexual harassment. The employers are liable for the supervisors as they have created hostile working conditions, however, if the victim has suffered no job-related consequences employers can defend themselves.
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    Krystal Garcia Centeno
    Krystal Garcia CentenoApr 14, 2021
    Holding compnaies accountable to sexual harassment and discrimination within thier workplace is so so important!!
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    Jeff Gemini
    Jeff GeminiApr 14, 2021
    Establishing this leads to employers taking more serious action in the workplace environment to prevent hostile work environments since they are the ones who have to deal with the consequences as well as the person responsible. Still rampant sexism and sexual harassment plagues some industries like the videogame development industry.
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    Anastasia Pogrebchtchikov
    Anastasia PogrebchtchikovApr 14, 2021
    The court ruled that it was in fact the employers responsibility to provide a safe environment that would make the employees comfortable. Even if the supervisor did not make any attempts of sexual contact, the employee still felt threatened by the supervisors actions. As Tina mentioned below, many victims do not report their sexual harassment due to the fact that they may not be believed. Especially in this situation where the person sexual harassing her was her superior.
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    Jacqueline Harmon
    Jacqueline HarmonApr 14, 2021
    Her work environment seemed so toxic, even enough that she quit. A company is responsible for how they handle reports of sexual harassment and what is done for the victims. I know I have experienced situations like these and I cannot imagine if my employer brushed me off.
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    Tina Tran
    Tina TranApr 14, 2021
    While I understand the attempt of the sexual harassment policy to curb sexual harassment in the workplace, I believe that Ellerth did not tell anyone because of the power dynamics involved as it was the Vice President. Often times, victims don’t report sexual harassment because of fear of not being believed or fear of being belittled. Thus, this just shows how more must be done to create an environment where those who have been sexually harassed feel comfortable stepping up and telling someone, not just creating a policy and leaving it. Moreover, I think either way, companies should be liable and held accountable for what their employers do as it is under their supervision as well.
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    Jocelyn Rodriguez
    Jocelyn RodriguezApr 13, 2021
    This case not only makes another stands against sexual harassment in the workplace, it ensure to hold companies accountable. It establishes that companies are always responsible for their employee’s actions and they must ensure they are providing services and methods that will prevent and correct any harassing behavior, if they do not want to be held liable, although they can still be held liable if it leads to employment actions, like a constructive discharge.
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    Zuzanna Kubiszewska
    Zuzanna KubiszewskaApr 12, 2021
    It’s not hard to not sexually harass someone. Especially when there’s a power dynamic in place (i.e. employer and employee) there’s a lot of steps that you can take in order to make sure that you aren’t sexually harassing your employees or individuals who fall under your supervision. Just because there were no negative implications into the employment status of Burlington doesn’t mean that the work environment wasn’t toxic by any means, for which she deserves some kind of retribution and Ellerth should take accountability and ownership for forcing this dynamic to play out.
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    Kiera Gnatz
    Kiera GnatzMay 8, 2020
    Regardless of the very top dog at a corporation being aware of the misconduct of subordinates, it is absolutely the company’s responsibility to make sure they are not fostering an environment that promotes or allows for hostility – I wholly agree with this ruling!
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    Lupe Zamudio
    Lupe ZamudioMay 8, 2020
    I mean isn’t that obvious. Great job at the supreme court to have common sense brain cells. Like they hire someone who turns out to be a not so great person. Surprise, you didn’t do a background check on your employer and they turn out like trash.
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    Deleted user
    Deleted userMay 8, 2020
    The Court held that employers are vicariously liable for hiring management or figures of authority who create a hostile work environment. I think this is a fair ruling and incentives employers to become more vigilant, creating a no-tolerance for sexual harassment atmosphere, and protect their employees from being an hostile work place.
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    Deleted user
    Deleted userMay 8, 2020
    Supervisors are held liable for their employees to manage their workplace so it is a “non-hostile” work environment. A fair ruling to achieve any sort of cohesion at a workplace
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    Brittany Tamayo
    Brittany TamayoMay 4, 2020
    I agree with others who have commented that it is the employers responsibility to make sure they prevent any type of hostile work environment. After all, they employ the supervisors, and therefore should make sure the supervisors are doing their jobs effectively and appropriately.
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    Jessica Myles
    Jessica MylesApr 29, 2020
    I see why the court ruled to hold employers vicariously liable because it is there responsibility to maintain an appropriate work environment for employees. I think this policy will also incentive employers to be more vigilant about activities in the workplace and also discourage remedies, like promotions, taken place by the the employers in this case.
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    Jose Perez
    Jose PerezApr 28, 2020
    There is no way to be able to keep any one supervisor under control. An employer can provide all the training possible to ensure their supervisors adhere to what they employer specifies abut at the end of the day the supervisor will choose to take his own actions. Where the employer would be negligent is if they found out about these issues and let it happen on a regular basis.
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    Deleted user
    Deleted userApr 28, 2020
    The Court held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority.

    Vicarious Liability is something I’ve seen show up a lot in Tort law. From a legal principle point it basically means that one person is held liable for the actions of another. ex: Parents being liable for their children’s actions
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    Abigail Zurita-Calvario
    Abigail Zurita-CalvarioApr 27, 2020
    Burlington attempted to remediate their employee’s harassment by offering her a promotion resulting in quid pro quo harassment. The company defended itself by claiming that the employee’s work was not negatively impacted, in fact she was promoted. Yet, the Court argued that the company should have attempted to remediate the harassment in another way (which could have resulted in a strong defense against liability for the company) other than through employment action such as Ellerth who was promoted.
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    Deleted user
    Deleted userApr 25, 2020
    In Burlington v. Ellerth, the court held that employers are vigorously liable for supervisor who create hostile work conditions for those him they have authority. This is a step in the right direction, as the court holds the employer liable. Each of these cases are building up protection against sexual harassment. Each case is detrimental as if the ruling where to shift the opposing side; harassment laws would go back instead of progressing forward. This is extremely important for appointing future justices, especially in this current administration.
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    Jose Perez
    Jose Perez
    I can see why they hold employers automatically liable but I can also see the other side nd say that employers cannot control the actions of all their employees, supervisors included.
    Apr 28, 2020•Delete
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    Kevin Lyles
    Marissa Scavelli
    Marissa ScavelliApr 25, 2020
    This case sets the standard that employers are subject to vicarious liability to a victimized employee for hostile environment that is created by a supervisor with another lower level employee due to sexual harassment. An employee who faces sexual harassment by a supervisor has a claim against the employer under Title VII of the Civil Rights Acts of 1964 even if that the employer was not explicitly responsible for the supervisor’s harassing conduct. Although if the supposedly harassed employee failed to take advantage of corrective opportunities provided by the employer, then the employer can raise an affirmative defense. So in order for a harassed employee to successfully make this claim, she or he would need to take steps to notify the employer of harassing behavior of a supervisor and if the employer essentially does nothing to correct the behavior then they are vicariously liable. In this case, Ellerth never informed her Burlington about her supervisors constant harassment even though she knew that Burlington had a policy against sexual harassment. So the Court held, “In light of the Court’s decision, Burlington is still subject to vicarious liability for Slowik’s activity, but should have an opportunity to assert and prove the affirmative defense.”
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    Evelyn Martinez Aguilera
    Evelyn Martinez AguileraApr 23, 2020
    The Court makes an important distinction between hostile work environment sexual harassment and quid pro quo sexual harassment. It seems that in quid pro quo cases the burden of proof shifts to the employer if an employee’s employment is affected by unwelcome sexual advances by an authority figure because that action is enough in of itself to prove quid pro quo harassment. Thus, employers have the burden of proving that the harassment did not occur or that actions of behalf of their employed authority figure occurred for other reasons.
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    Liliana Diaz
    Liliana DiazApr 23, 2020
    team 6

    Facts: Kimberly B. Ellerth worked at Burlington Industries for 15 months before quitting
    because she allegedly suffered sexual harassment by her supervisor Ted Slowik. Even though Ellerth refused Slowik’s advances she was not retaliated against and was promoted once. Ellerth remained silent despite knowing about Burlington’s policy against sexual harassment — Ellerth challenged Burlington by claming that the company forced her constructive discharge.

    Issue: Can an employee, who despite refusing sexually harassing advances by a supervisor suffers no adverse job-related consequences, recover against an employer under Title VII of the Civil Rights Acts of 1964, without showing that the employer was responsible for the supervisor’s harassing conduct?

    Holding: Yes; 7-2.

    Reasoning: The Court held that employers are liable for supervisors who create hostile working conditions for those who they have authority over. If the employee suffered no job-related consequences then the employer can defend themselves by showing that they acted quickly to prevent and correct any harassing behavior and that the harassed employee didn’t utilize their employer’s protection — this defense is not available for Ellerth’s case i.e. when the alleged harassment culminates in an employment action.
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    Sylvia Waz
    Sylvia WazApr 20, 2020
    I agree with this ruling. It is the supervisors responsibility to ensure the well-being of their employees. The court states that they could defend themselves if there were no job related consequences, and if they provide evidence that they acted quickly, corrected any behavior, and that the harassed employee failed to use the supervisor as protection.
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    Liliana Diaz
    Liliana DiazApr 18, 2020
    The Court held that employers can be held liable for supervisors creating hostile work environments and when there is no job-related consequences employers can defend themselves against liability by showing that they “quickly acted to prevent and correct any harassing”.
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    Deleted user
    Deleted userApr 22, 2019
    “Kimberly Ellerth (plaintiff) was a salesperson for Burlington Industries, Inc. (Burlington) (defendant) from March 1993 to May 1994. Ellerth worked with her immediate supervisor in Burlington’s Chicago office. Ellerth’s supervisor answered to Ted Slowik, a mid-level manager working out of New York. Throughout Ellerth’s time at Burlington, Slowik frequently made sexist and sexually demeaning comments to Ellerth. Slowik’s conduct included remarks Ellerth interpreted as threats to deny her advancement opportunities within the company. Ellerth applied for and received a promotion, but Slowik continued to make sexist, offensive comments. Ellerth never reported Slowik’s behavior. Ellerth subsequently quit her job, citing reasons unrelated to Slowik’s alleged harassment, but weeks later she sent Burlington a letter identifying Slowik’s offensive conduct as the reason she left. Ellerth sued Burlington under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., alleging the company was vicariously liable for Slowik’s unlawful sexual harassment. The district court granted summary judgment to Burlington, concluding that although Slowik’s conduct created a hostile work environment, Burlington was not negligent. The court of appeals reversed, and Burlington petitioned for review by the United States Supreme Court.”

    https://www.quimbee.com/cases/burlington-industries-inc-v-ellerth
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    Deleted user
    Deleted userApr 17, 2019
    Facts: Kimberly Ellerth worked for Burlington industries. During her time of employment, she suffered sexual harassment from her supervisor. She refused his advances and her job did not suffer. she even got promoted once. She also refused to come forward about the advances, despite knowing the sexual harassment policies of the company.
    Question: Can an employee recover against an employer using Title VII of CRA of 1964, despite not having suffered any job related consequences from the harassment?
    Decision: “Yes. In a 7-to-2 opinion, the Court held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority. In cases where harassed employee’s suffer no job-related consequences, employers may defend themselves against liability by showing that they quickly acted to prevent and correct any harassing behavior and that the harassed employee failed to utilize their employer’s protection. Such a defense, however, in not available when the alleged harassment culminates in an employment action, such as Ellerth’s.”
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    Deleted user
    Deleted userApr 14, 2019
    This case established that when there are no job-related consequences at risk, there is a defense comprising two necessary elements: (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. http://time.com/5319966/sexual-harassment-scotus-anniversary/
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    Deleted user
    Deleted userApr 23, 2018
    I believe that a major issue with sexual harassment is that many employers delude themselves into believing what they are doing is not harassment, but flattery or banter. Defining these issues and giving clear boundaries would help to at least diminish the excuse of ignorance.
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    Deleted user
    Deleted userApr 19, 2018
    “the employer exercised reasonable care to prevent and correct promptly any sexual harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise.”

    I feel as though this is placing the burden on the victim, many of who understandably would have a difficult time reporting harassment and seeking “corrective opportunities.”
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    Deleted user
    Deleted userApr 18, 2018
    This decision appears to be a step in the right direction. To hold employers liable for creating hostile work environments is to protect employees from such instances for sexual harassment. However, how will employers address the issue if they were to go unreported?
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    Deleted user
    Deleted userApr 15, 2018
    In this case, there was a clear distinction made between sexual harassment cases where the tangible job consequences are suffered or not. In cases where they are, the employer would be liable for the supervisor’s actions that resulted in tangible job consequences but in cases where tangible job consequences were not suffered by the victimized employee, the employer is vicariously liable for supervisor’s actions of creating a hostile environment but the Court discusses availability of affirmative defense.
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    Deleted user
    Deleted userApr 24, 2017
    Cases like these are the prime example of why all places of employment should be required to have sexual harassment training. Not only because it will help employees defend themselves legally about unwanted advances from their supervisors, but also be a constant reminder that sexual harassment is not something that should be taken lightly at any office.
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    Deleted user
    Deleted userApr 13, 2017
    “In a 7-to-2 opinion, the Court held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority. In cases where harassed employee’s suffer no job-related consequences, employers may defend themselves against liability by showing that they quickly acted to prevent and correct any harassing behavior and that the harassed employee failed to utilize their employer’s protection. Such a defense, however, in not available when the alleged harassment culminates in an employment action, such as Ellerth’s.”

    I may be understanding this incorrectly but from my understanding this case renders the employer (Burlington) liable for harassment committed by their manager (Ted Slowik) and thus places the burden of proof on the employer to prove that they dealt with the matter quickly. This was a step in the right direction judicially towards supporting victims of sexual harassment in the workplace.
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    Deleted user
    Deleted userApr 12, 2017
    Slides 9-11 discuss the case

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    Deleted user
    Deleted userApr 13, 2016
    I. Burlington v Ellerth
    II. Facts: After 15 months of working for Burlington industries, Kimberly Ellerth decided to quit her job because she was subject to sexual harassment by a supervisor. Ted Slowik was the supervisor, Ellerth did not mention the harassment by Slowik and refused advances attempting to be made by him, it was noted as well that she was promoted once as well under his supervision. Ellerth eventually claimed that Burlington Industries engaged in sexual harassment and that the company forced her into discharge from the company.
    III. Issue: was Ellerth discharge in violation of Title VII of the Civil Rights Act of 1964, without any knowingly advising someone?
    IV. Holding: Yes, in a 7-2 decision, “Under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor’s actions, but the employer may interpose an affirmative defense.”
    V. Opinion: the court distinguished between two types of sexual harassment cases, the “quid pro quo” that being where threats from harassment are actually carried out and retaliation can occur, and the other being hostile environment cases in which the supervisor is making remarks sexually that can be troublesome. “ employers may defend themselves against liability by showing that they quickly acted to prevent and correct any harassing behavior and that the harassed employee failed to utilize their employer’s protection”
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    Kevin Lyles
    Kevin LylesApr 22, 2015
    only two comments from t3?
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    Deleted user
    Deleted userApr 13, 2015
    Sexual harassment is a form of sex discrimination so the law protects the employee, the subordinate, from her supervisor, the person in authority. I get that the employee is liable for the actions of the supervisor, yet I don’t understand why she did not document the harassment.
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    Deleted user
    Deleted userApr 11, 2015
    I. Burlington Industries, Inc., v. Ellerth 524 U.S. 742 (1998)
    II. Justice Kennedy delivers the opinion, he outlines that a supervisor’s actions can be viewed as an employer’s actions because supervisor’s have powers which other co-workers do not, such as docking pay for which there is an internal structure of approval. If a supervisor is negligent then it follows that the employer is negligent. In the event of sexual harassment it is the employer’s duty to have some kind of corrective mechanism to catch it, and the employee’s duty to use it. Ellerth is an employee at Burlington’s and her supervisor (Slowik) created a “sexually hostile work enviroment”.
    III. Did the court of appeals follow existing case law when it denying Ellerth the right to prove employer liability?
    IV. Yes, reversed and remanded.
    V. Scalia and Thomas dissent, because it makes it so that an employer can be liable even in the event that there is already a mechanism in place.
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    Deleted user
    Deleted userApr 16, 2014
    Why was she “forced to quit” because of her employer’s/superior’s sexual advances? Wouldn’t it be easier to just report it to someone who’s higher up on the chain of command?
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    Deleted user
    Deleted userApr 16, 2014
    I was kind of thinking that she should have to prove negligence but I think hiring someone who sexually harasses sales people is negligent enough
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    Deleted user
    Deleted userApr 16, 2014
    Basically if a supervisor fires an employee for not accepting his/her sexual advances the company is liable even if said employee did not come forward to report the sexual harassment.
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    Deleted user
    Deleted userApr 16, 2014
    The Court held that employers are liable for supervisors who create hostile working conditions.

    I honestly have no idea what sexual harassment means…

    Negheen, T3
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    Deleted user
    Deleted user
    Whatever the Court thinks it means, obviously. Just like the law!

    Steve/Scott, T3
    Apr 16, 2014 (edited Apr 16, 2014)•Delete
    Deleted user
    Deleted user
    The sass is strong in this one.
    Apr 16, 2014•Delete

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