Master Supreme Court established the vicarious liability framework (with an affirmative defense) for employer liability when a supervisor creates a hostile work environment under Title VII. with this comprehensive case brief.
Burlington Industries v. Ellerth is one of the two landmark 1998 Supreme Court decisions (together with Faragher v. City of Boca Raton) that restructured the legal landscape for employer liability in cases of supervisor sexual harassment under Title VII. The Court abandoned rigid labels like “quid pro quo” and “hostile work environment” as dispositive of liability and instead focused on whether the harassment culminated in a tangible employment action. This shift harmonized Title VII’s goals of deterrence and fairness with agency-law principles.
The decision created the now-canonical Ellerth/Faragher framework: employers are vicariously liable for a supervisor’s actionable hostile environment, but when no tangible employment action occurs, they may avoid liability by proving a two-pronged affirmative defense. This framework has shaped compliance practices nationwide, compelling employers to adopt effective policies and complaint procedures and encouraging employees to utilize them, while clarifying when strict vicarious liability attaches.
524 U.S. 742 (U.S. Supreme Court 1998)
Kimberly Ellerth worked for Burlington Industries for about 15 months as a salesperson in Chicago. She alleged that a mid-level manager with supervisory authority over her, Ted Slowik, repeatedly made sexually suggestive comments and unwanted advances. On multiple occasions he linked job benefits to sexual compliance, stating in substance that he could make her job “very hard or very easy,” suggesting that her promotion prospects depended on how she responded, and making unwanted physical contact (such as touching her knee) during business trips. Ellerth refused his advances and did not suffer a tangible job detriment; in fact, a promotion she was told might be withheld was ultimately approved. Burlington maintained an anti-harassment policy with a complaint procedure, but Ellerth did not invoke it while employed. She resigned and, after leaving, notified the company of the harassment and then brought a Title VII action alleging sexual harassment that created a hostile work environment. The case reached the Supreme Court on the question of the proper standard for employer liability for a supervisor’s harassment where no tangible employment action occurred.
Under Title VII, when a supervisor creates a sexually hostile work environment but no tangible employment action is taken against the employee, is the employer vicariously liable, and if so, what standard governs and what defenses, if any, are available?
An employer is vicariously liable under Title VII for a supervisor’s creation of a hostile work environment. If the supervisor’s harassment culminates in a tangible employment action (such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits), the employer is strictly liable and no affirmative defense is available. If no tangible employment action occurs, the employer may raise an affirmative defense by proving: (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior (e.g., through effective policies, training, and complaint mechanisms), and (b) the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
The Supreme Court held that employers are vicariously liable for a supervisor’s actionable hostile environment, but where no tangible employment action occurred, the employer may assert a two-pronged affirmative defense. The case was remanded for application of this framework.
The Court grounded its analysis in Title VII’s text and the common-law principles of agency as incorporated into the statute. Relying on the Restatement (Second) of Agency, the Court reasoned that a supervisor is aided in committing harassment by the authority conferred by the employer, which justifies vicarious liability. When a supervisor’s harassment results in a tangible employment action, that action is considered the employer’s act because such actions are typically within the supervisor’s special authority and reflect the employer’s official decision-making; vicarious liability therefore attaches without any affirmative defense. In cases where the harassment does not culminate in a tangible employment action, the Court balanced deterrence with fairness by providing an affirmative defense. This defense encourages employers to adopt and enforce effective anti-harassment policies and complaint procedures (satisfying the first prong) and incentivizes employees to use them (second prong). The Court rejected the rigid, outcome-determinative distinction between “quid pro quo” and “hostile work environment,” explaining that the more relevant inquiry is whether the supervisor’s conduct produced a tangible employment action. The framework aims to prevent harassment, encourage internal remediation, and allocate responsibility consistent with agency principles and Title VII’s remedial goals.
Ellerth (together with Faragher) created the foundational framework for supervisor harassment liability under Title VII, replacing the older quid pro quo/hostile-environment dichotomy with the tangible-employment-action test and the Ellerth/Faragher affirmative defense. It reshaped employer compliance practices and litigation strategies: employers must implement robust policies, training, and reporting procedures, while employees are expected to utilize those procedures absent a reasonable excuse. The case also laid the groundwork for later decisions clarifying who qualifies as a “supervisor” (e.g., Vance v. Ball State University) and how constructive discharge fits into the framework (e.g., Pennsylvania State Police v. Suders). For law students, Ellerth is essential to understanding vicarious liability, agency law’s interaction with Title VII, and the practical compliance incentives built into employment discrimination law.
It is a two-pronged defense available to an employer when a supervisor’s harassment did not result in a tangible employment action. The employer must prove both: (a) it exercised reasonable care to prevent and promptly correct harassment (e.g., effective policies, training, accessible complaint channels, prompt investigations, and remedial measures), and (b) the employee unreasonably failed to take advantage of those preventive or corrective opportunities or otherwise avoid harm.
A tangible employment action is a significant change in employment status, typically an official act of the enterprise: hiring, firing, demotion, failure to promote, reassignment with significantly different responsibilities, or a significant change in pay or benefits. If harassment culminates in such an action, the employer is strictly vicariously liable and cannot invoke the affirmative defense.
Not always, but failure to use an employer’s reasonable complaint procedures can satisfy the second prong of the Ellerth/Faragher defense. If no tangible employment action occurred, an employee’s unreasonable failure to report or otherwise avoid harm can allow the employer to avoid liability. If a tangible employment action occurred, reporting is not required to defeat the employer’s liability.
Ellerth assumed a supervisor is someone with immediate or successively higher authority over the employee. The Supreme Court later clarified in Vance v. Ball State University (2013) that, for vicarious-liability purposes, a supervisor is an employee empowered by the employer to take tangible employment actions against the victim. If the harasser lacks that authority, employer liability is generally based on negligence rather than vicarious liability.
Ellerth deemphasized those labels and made the presence or absence of a tangible employment action the key determinant of liability and defenses. Harassment once labeled “quid pro quo” typically involves tangible actions and triggers strict vicarious liability; harassment without such actions is addressed through the affirmative defense framework.
Resignation alone is not necessarily a tangible employment action. The Supreme Court later held in Pennsylvania State Police v. Suders (2004) that a constructive discharge may, in some circumstances, function like a tangible employment action—especially if it results from an official act such as a demotion. Where constructive discharge is not precipitated by an official act, the employer may still assert the Ellerth/Faragher defense.
Burlington Industries v. Ellerth reoriented Title VII supervisor harassment law around agency principles and practical incentives. By linking strict vicarious liability to tangible employment actions and providing an affirmative defense in other cases, the Court crafted a framework that both deters misconduct and encourages internal prevention and remediation.
For practitioners and students, the case underscores that liability often turns on two questions: Did the harassment culminate in an official, tangible job action? And if not, can the employer show robust preventive and corrective measures and that the employee unreasonably failed to use them? Mastery of this analysis is indispensable for litigating and counseling in sexual harassment matters under Title VII.