760
Opinion of the Court
ity based on an agent's misuse of delegated authority, the Restatement's aided in the agency relation rule, rather than the apparent authority rule, appears to be the appropriate form of analysis.
D
We turn to the aided in the agency relation standard. In a sense, most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation: Proximity and regular contact may afford a captive pool of potential victims. See Gary v. Long, 59 F. 3d 1391, 1397 (CADC 1995). Were this to satisfy the aided in the agency relation standard, an employer would be subject to vicarious liability not only for all supervisor harassment, but also for all co-worker harassment, a result enforced by neither the EEOC nor any court of appeals to have considered the issue. See, e. g., Blankenship v. Parke Care Centers, Inc., 123 F. 3d 868, 872 (CA6 1997), cert. denied, 522 U. S. 1110 (1998) (sex discrimination); McKenzie v. Illinois Dept. of Transp., 92 F. 3d 473, 480 (CA7 1996) (sex discrimination); Daniels v. Essex Group, Inc., 937 F. 2d 1264, 1273 (CA7 1991) (race discrimination); see also 29 CFR § 1604.11(d) (1997) ("knows or should have known" standard of liability for cases of harassment between "fellow employees"). The aided in the agency relation standard, therefore, requires the existence of something more than the employment relation itself.
At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate. Every Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action. See, e. g., Sauers v. Salt Lake County, 1 F. 3d 1122, 1127 (CA10 1993) (" 'If the plaintiff can show that she suffered an economic injury from her supervisor's actions, the employer becomes strictly liable without any further showing . . .'").
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