Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 28 (1998)

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Cite as: 524 U. S. 742 (1998)

Thomas, J., dissenting

858 F. 2d 345, 349 (CA6 1988), cert. denied, 490 U. S. 1110 (1989). Liability has thus been imposed only if the employer is blameworthy in some way. See, e. g., Davis v. Monsanto Chemical Co., supra, at 349; Snell v. Suffolk Cty., supra, at 1104; DeGrace v. Rumsfeld, 614 F. 2d 796, 805 (CA1 1980).

This distinction applies with equal force in cases of sexual harassment.2 When a supervisor inflicts an adverse employment consequence upon an employee who has rebuffed his advances, the supervisor exercises the specific authority granted to him by his company. His acts, therefore, are the company's acts and are properly chargeable to it. See 123 F. 3d 490, 514 (CA7 1997) (Posner, C. J., dissenting); ante, at 762 ("Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control").

If a supervisor creates a hostile work environment, however, he does not act for the employer. As the Court concedes, a supervisor's creation of a hostile work environment is neither within the scope of his employment, nor part of his apparent authority. See ante, at 755-760. Indeed, a hostile work environment is antithetical to the interest of the employer. In such circumstances, an employer should be liable only if it has been negligent. That is, liability should attach only if the employer either knew, or in the exercise of

2 The Courts of Appeals relied on racial harassment cases when analyzing early claims of discrimination based upon a supervisor's sexual harassment. For example, when the Court of Appeals for the District of Columbia Circuit held that a work environment poisoned by a supervisor's "sexually stereotyped insults and demeaning propositions" could itself violate Title VII, its principal authority was Judge Goldberg's opinion in Rogers v. EEOC, 454 F. 2d 234 (CA5 1971). See Bundy v. Jackson, 641 F. 2d 934, 944 (CADC 1981); see also Henson v. Dundee, 682 F. 2d 897, 901 (CA11 1982). So, too, this Court relied on Rogers when in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), it recognized a cause of action under Title VII for sexual harassment. See id., at 65-66.

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