Master Supreme Court decision establishing the Faragher/Ellerth framework for employer vicarious liability for supervisor-created hostile work environments under Title VII. with this comprehensive case brief.
Faragher v. City of Boca Raton is a cornerstone of Title VII jurisprudence on employer liability for sexual harassment by supervisors. Decided the same day as Burlington Industries, Inc. v. Ellerth, the case articulates when an employer is automatically liable for a supervisor’s hostile work environment and when the employer may raise an affirmative defense. Together, these decisions created the Faragher/Ellerth framework that governs the vast majority of workplace harassment cases today.
The Supreme Court balanced competing interests: deterring and remedying harassment while encouraging employers to prevent misconduct and employees to report it early. The resulting standard imposes vicarious liability on employers for supervisor harassment but allows an affirmative defense when no tangible employment action occurs—provided the employer exercised reasonable care to prevent and correct harassment and the employee unreasonably failed to use those preventive or corrective measures.
Faragher v. City of Boca Raton, 524 U.S. 775 (1998)
Beth Ann Faragher worked as an ocean lifeguard for the City of Boca Raton. Her immediate supervisors in the Marine Safety Section—two male supervisors who directed her daily work and controlled assignments—subjected her and other female lifeguards to a pervasive pattern of sexual harassment over a multi-year period. The misconduct included repeated lewd remarks, unwanted touching, and threats or comments suggesting that workplace benefits and assignments could be affected by the lifeguards’ responses to sexualized behavior. The City had adopted a sexual harassment policy on paper, but it failed to disseminate it to the beach employees, did not provide an accessible complaint mechanism for them, and offered no effective oversight of the supervisors at the beach. Faragher informally complained but no effective corrective action followed. She eventually resigned and sued under Title VII, alleging a hostile work environment created by her supervisors. The district court found a hostile environment and held the City liable. The Eleventh Circuit, sitting en banc, reversed, reasoning that the City lacked actual notice and the harassment did not occur within the supervisors’ scope of employment. The Supreme Court granted certiorari.
When, and under what standard, is an employer vicariously liable under Title VII for a hostile work environment created by a supervisor, and what defenses are available when the harassment does not culminate in a tangible employment action?
Under Title VII, an employer is vicariously liable for a hostile work environment created by a supervisor. If the harassment culminates in a tangible employment action (a significant change in employment status, such as hiring, firing, demotion, failure 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 the Faragher/Ellerth affirmative defense by proving: (1) it exercised reasonable care to prevent and promptly correct any harassing behavior (e.g., by maintaining and effectively disseminating a workable anti-harassment policy and complaint procedure, training, and prompt remedial action); and (2) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities provided or to otherwise avoid harm. The liability framework is grounded in agency principles, including the idea that supervisors are aided in accomplishing harassment by the authority the employer delegates to them.
Yes. The City is vicariously liable for the hostile work environment created by Faragher’s supervisors. Although no tangible employment action occurred, the City failed to establish the affirmative defense because it did not exercise reasonable care to prevent and correct harassment—its policy was not effectively disseminated to beach employees and it lacked an accessible complaint procedure—and Faragher did not act unreasonably in failing to invoke a non-existent or inaccessible process. The Supreme Court reversed the Eleventh Circuit and reinstated the district court’s judgment for Faragher.
The Court began by reaffirming that hostile work environment sexual harassment is actionable under Title VII (Meritor; Harris) and that employer liability turns on agency principles. Supervisors, unlike co-workers, wield authority delegated by the employer, which can aid them in committing harassment. That agency relationship justifies vicarious employer liability. At the same time, the Court emphasized Title VII’s preventive goals and the need to articulate a standard that incentivizes employers to implement effective anti-harassment regimes and encourages employees to use them. Drawing heavily on common-law agency concepts and policy considerations, the Court announced a two-track approach. Where supervisor harassment results in a tangible employment action, the supervisor has used the employer’s official power to effect a material change in the victim’s employment; in such cases, the employer is strictly liable, with no affirmative defense. Where there is no tangible employment action, the employer may avoid liability by establishing an affirmative defense: (1) that it acted with reasonable care to prevent and promptly correct harassment; and (2) that the employee unreasonably failed to use preventive or corrective opportunities. This framework aligns liability with the realities of workplace control and furthers Title VII’s preventive purposes. Applying the new standard, the Court found that the City failed the first prong. Although the City had a harassment policy, it was not disseminated to the Marine Safety Section, there was no accessible complaint procedure for beach employees, and there was a lack of oversight of the offending supervisors. These defects demonstrated that the City had not exercised reasonable care to prevent and correct harassment. On the second prong, Faragher’s failure to use internal procedures was not unreasonable because there was no effective mechanism to use. Accordingly, the City could not avail itself of the affirmative defense. The Eleventh Circuit’s focus on actual notice and scope-of-employment limits misapplied Title VII, which imposes vicarious liability for supervisor-created hostile environments subject to the newly announced defense.
Faragher, together with Ellerth, established the governing framework for employer liability in supervisor harassment cases—the Faragher/Ellerth affirmative defense. It clarifies that employers are automatically liable when supervisor harassment culminates in a tangible employment action, and otherwise may avoid liability only by proving robust preventive and corrective measures and an unreasonable failure by the employee to use them. The case guides employers to implement and publicize accessible anti-harassment policies, training, multiple reporting channels outside the chain of command, and prompt remedial action. For law students, Faragher is foundational to Title VII doctrine, illustrates the synthesis of agency law with statutory civil rights, and is frequently tested alongside later refinements such as Vance v. Ball State University (defining supervisor) and Pennsylvania State Police v. Suders (constructive discharge and tangible employment actions).
A tangible employment action is a significant change in employment status or benefits, typically documented by official acts. Examples include hiring, firing, demotion, failure to promote, a significant pay cut, reassignment with significantly different responsibilities, or decisions causing a significant change in benefits. If the harassment culminates in such an action, the employer is strictly liable with no affirmative defense.
The employer must prove both prongs: (1) reasonable care to prevent and promptly correct harassment—usually shown by an effectively disseminated and enforced anti-harassment policy, accessible complaint channels (including options outside the harasser’s chain of command), regular training, monitoring, and prompt, effective remedial action; and (2) that the employee unreasonably failed to use those procedures or otherwise avoid harm. A policy that exists only on paper or is not communicated to affected employees is generally insufficient.
Faragher’s vicarious liability framework concerns supervisor harassment. For co-worker harassment, employers are liable under a negligence standard: they are liable if they knew or should have known of the harassment and failed to take prompt and appropriate corrective action. The Faragher/Ellerth affirmative defense is not the operative test for co-worker harassment; instead, the question is whether the employer acted reasonably in preventing and remedying the conduct.
Faragher described supervisors as those with immediate or successively higher authority over the employee. Later, in Vance v. Ball State University (2013), the Supreme Court clarified that, for Title VII vicarious liability, a supervisor is someone empowered by the employer to take tangible employment actions (e.g., hire, fire, promote, demote) against the victim. Under Vance, employees who direct day-to-day tasks but lack power over tangible employment actions are typically treated as co-workers for liability purposes.
Not automatically. In Pennsylvania State Police v. Suders (2004), the Court held that a constructive discharge may be treated as a tangible employment action only when it is precipitated by an official act of the enterprise (e.g., a formal demotion or significant reassignment). If the constructive discharge is not tied to an official act, the employer may still assert the Faragher/Ellerth affirmative defense.
Faragher v. City of Boca Raton reshaped employer liability for workplace harassment by supervisors, marrying agency-law concepts with Title VII’s remedial and preventive goals. It requires employers to take prevention seriously—by creating, publicizing, and enforcing effective anti-harassment policies and complaint systems—and it encourages employees to report misconduct early.
For practitioners and students, Faragher is a must-know case. It sets the default rules for when employers are strictly liable, when an affirmative defense is available, and what both sides must show. Its framework, refined by cases like Ellerth, Vance, and Suders, continues to structure litigation strategy, compliance programs, and judicial analysis in harassment cases nationwide.