Burlington Industries, Inc. v. Ellerth: an Affirmative Defense Against Employer Liability for Supervisory Harassment - Joyelle K. Werner

• Publication year: 1999

Casenotes

Burlington Industries, Inc. v. Ellerth: An Affirmative Defense Against Employer Liability for Supervisory Harassment

In Burlington Industries, Inc. v. Ellerth,¹ the Supreme Court held that an employer is vicariously liable for its supervisor's harassment that creates a hostile work environment,² subject only to the affirmative defense that the employer "exercised reasonable care to prevent and correct" the harassment and that the "employee unreasonably failed to take advantage" of the employer's remedial procedure or corrective opportunities offered after the fact.³

I. Factual Background

In 1993 Kimberly Ellerth ("Ellerth") began working for Burlington Industries, Inc. ("Burlington") as a merchandising assistant for the Chicago office. Ellerth's immediate supervisor was Mary Strenk Fitzgerald ("Fitzgerald"), and Fitzgerald's supervisor was Theodore Slowik ("Slowik"). As merchandising assistant, Ellerth spoke with Slowik on the phone, on average, once per week. She also traveled to training-related sessions where she would see Slowik. Ellerth received a promotion to the position of sales representative in February 1994. Her new immediate supervisor was Patrick Lawrence, and his supervisor was Slowik.⁴

During her employment, Ellerth endured numerous occasions of harassment from Slowik.⁵ He told "offensive" jokes⁶ in her presence, commented on her legs repeatedly,⁷ and touched her knee during a lunch meeting.⁸ During one conversation, Slowik commented, "[y]ou know, Kim, I could make your life very hard or very easy at Burlington."⁹ Ellerth interpreted this comment to mean that Slowik would cause problems for her at Burlington if she did not have sex with him.¹⁰ While sitting in Ellerth's office making phone calls, Slowik told her, "[i]t's nice to have my butt where your butt was, Kim."¹¹ On another occasion, Ellerth contacted Slowik to get permission to do a favor for a customer, to which Slowik replied, "I don't have time for you right now, Kim, unless you're telling me—unless you want to tell me what you are wearing."¹² Ellerth called Slowik again to try to get permission, and

Slowik refused her request but asked her if she was "wearing shorter skirts yet . . . because it would make [her] job a whole heck of a lot easier."¹³

Burlington had a policy against sexual harassment, which was included in the employee handbook.¹⁴ Ellerth had read the policy in the handbook but did not report Slowik's harassing conduct to her supervisors. Her husband advised her against informing her supervisors about the conduct because he feared that she might lose her job.¹⁵ Ellerth claimed that she did complain to a few Burlington employees, but each denied¹⁶ that Ellerth ever discussed Slowik's harassing conduct.¹⁷

On May 31, 1994, Ellerth informed her supervisor that she was quitting her job but did not mention Slowik's harassing conduct. In a June 21, 1994 letter, however, she did inform him that she had quit because of Slowik's harassment.¹⁸ Ellerth filed a sexual harassment charge with the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC").¹⁹ In her charge, Ellerth claimed she felt she had to quit her job because Slowik's harassment created an "abusive work environment."²⁰ On November 30, 1994, the EEOC sent Ellerth a right to sue letter and she filed a Title VII²¹ sexual harassment suit against Burlington.²²

At trial the district court examined Ellerth's claim to determine whether the harassment created a hostile environment,²³ and, if so, whether Burlington was liable.²⁴ The court concluded that a reasonable jury could find that Slowik's conduct "materially altered the conditions of [Ellerth's] employment" and took away her right to a work environment "free from discriminatory intimidation, ridicule and insult."²⁵ The court then analyzed Burlington's liability for Slowik's harassing conduct by considering three different agency theories for employer liability.²⁶ First, the court determined that Slowik's conduct was outside the scope of employment because he was not "motivated . . . by a purpose to serve Burlington."²⁷ Next, the court analyzed Burlington's negligence in regard to Slowik's conduct and found that Burlington was not negligent because it had a sexual harassment policy, and Ellerth failed to use the policy.²⁸ Finally, the court found that Burlington was not liable to Ellerth on the theory that Slowik was acting on behalf of Burlington because Ellerth was "fully aware that Slowik had exceeded the bounds of his authority."²⁹ The court granted Burlington's motion for summary judgment.³⁰

Ellerth appealed, arguing the district court had misapplied the agency theories for employer liability.³¹ The court of appeals found that Slowik's conduct was within the scope of employment, and therefore, Burlington was liable for Slowik's harassment.³² The court stated that, under the common law of agency, Burlington had a duty to "monitor the supervisory employees to whom it has entrusted special powers."³³ The court found that Ellerth had presented enough information to survive Burlington's summary judgment motion, and it therefore reversed and remanded.³⁴

The United States Supreme Court granted certiorari to determine when an employer can be held liable for a supervisory employee's sexual harassment that creates a hostile work environment.³⁵ The Supreme Court affirmed the court of appeals reversal, holding that an employer is vicariously liable for its supervisor's harassing conduct, subject to an affirmative defense composed of two elements.³⁶ In order to avoid liability altogether, the employer would have to prove by a preponderance of the evidence: "(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."³⁷ Consequently, the Court found that Burlington could be vicariously liable for Slowik's conduct, but it remanded to allow Burlington to develop the facts necessary to establish the affirmative defense.³⁸

II. Legal Background

Most circuit courts faced with the question have held that supervisors and other high officials cannot be held individually liable for their harassment.³⁹ The standards governing employer liability, therefore, become crucial to recovery when the victim is harassed by a supervisor.⁴⁰ In Meritor Savings Bank v. Vinson,⁴¹ the Supreme Court declined to announce particularized standards for employer liability in sexual harassment cases.⁴² It did, however, reverse the United States Court of Appeals for the District of Columbia, which found employers could be held strictly liable for hostile environment harassment by a supervisory employee.⁴³ On the other hand, the Court found that even an employer with an established grievance policy who received no notice of a supervisor's harassment is not conclusively insulated from potential liability, particularly if the procedures require a complaint to be made to the alleged harasser.⁴⁴ Without specifying standards, the Court suggested that agency principles⁴⁵ should be used as a guide in the area of employer liability.⁴⁶

The United States Court of Appeals for the Eleventh Circuit has expanded on the Meritor agency analysis and decided cases regarding employers' liability for supervisory sexual harassment. In Sparks v. Pilot Freight Carriers, Inc.,⁴⁷ for example, the Eleventh Circuit held that an employer is liable for a supervisor's conduct if the supervisor uses his authority while harassing the victim.⁴⁸ The court determined that the relevant question was not whether the supervisor was an agent for general purposes, but whether the supervisor had agent status respecting the activity during the harassment, or the means by which he harassed the victim.⁴⁹ In reaching this conclusion, the court looked to the EEOC's amicus brief in Meritor.⁵⁰ The EEOC had argued an employer should be directly liable for a supervisor's conduct when the "'supervisor exercises the authority actually delegated to him by his employer, by making or threatening to make decisions affecting the employment status of his subordinates.'"⁵¹

In Steele v. Offshore Shipbuilding, Inc.,⁵² the Eleventh Circuit distinguished an employer's liability in hostile environment harassment cases from its liability for a supervisor's or manager's "quid pro quo" sexual harassment.⁵³ The court emphasized that the Sparks decision, which held an employer vicariously and strictly liable, applied only to those hostile environment cases where there was also quid pro quo sexual harassment.⁵⁴ In Steele, the court determined that while an employer's liability in pure hostile environment sexual harassment cases may be vicarious, an employer can be held vicariously and strictly liable only in cases involving quid pro quo harassment.⁵⁵ The court found defendant not liable for its supervisor's conduct because it took immediate action once its high managerial officials had notice of the harassment.⁵⁶

The United States Court of Appeals for the Eighth Circuit refused to hold an employer liable for its supervisor's offensive actionable conduct if the employer, after receiving notice, took prompt corrective action. The circuit court in Todd v. Ortho Biotech, Inc.⁵⁷ concluded that holding an employer strictly liable for its supervisor's actions discourages the employer from instituting a sexual harassment policy and investigating employees' complaints of harassment.⁵⁸ The court found that strict liability is "inconsistent with [Title VII's] ultimate goal, which is to eliminate sex discrimination, not simply to 'point a finger at deep pockets upon the incident of harassing behavior.'"⁵⁹ Significantly, the court appeared to relieve defendant of liability even though plaintiff had complained of the supervisor's unlawful conduct.⁶⁰

The...