766
Thomas, J., dissenting
should have an adequate opportunity to prove she has a claim for which Burlington is liable.
Although Ellerth has not alleged she suffered a tangible employment action at the hands of Slowik, which would deprive Burlington of the availability of the affirmative defense, this is not dispositive. In light of our decision, Burlington is still subject to vicarious liability for Slowik's activity, but Burlington should have an opportunity to assert and prove the affirmative defense to liability. See supra, at 765.
For these reasons, we will affirm the judgment of the Court of Appeals, reversing the grant of summary judgment against Ellerth. On remand, the District Court will have the opportunity to decide whether it would be appropriate to allow Ellerth to amend her pleading or supplement her discovery.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice Ginsburg, concurring in the judgment. I agree with the Court's ruling that "the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability." Ante, at 765. I also subscribe to the Court's statement of the rule governing employer liability, ibid., which is substantively identical to the rule the Court adopts in Faragher v. Boca Raton, post, p. 775.
Justice Thomas, with whom Justice Scalia joins, dissenting.
The Court today manufactures a rule that employers are vicariously liable if supervisors create a sexually hostile work environment, subject to an affirmative defense that the Court barely attempts to define. This rule applies even if the employer has a policy against sexual harassment, the employee knows about that policy, and the employee never
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