772
Thomas, J., dissenting
appears to reason that a supervisor is "aided . . . by . . . the agency relation" in creating a hostile work environment because the supervisor's "power and authority invests his or her harassing conduct with a particular threatening character." Ante, at 763.
Section 219(2)(d) of the Restatement provides no basis whatsoever for imposing vicarious liability for a supervisor's creation of a hostile work environment. Contrary to the Court's suggestions, the principle embodied in § 219(2)(d) has nothing to do with a servant's "power and authority," nor with whether his actions appear "threatening." Rather, as demonstrated by the Restatement's illustrations, liability under § 219(2)(d) depends upon the plaintiff's belief that the agent acted in the ordinary course of business or within the scope of his apparent authority.4 In this day and age, no sexually harassed employee can reasonably believe that a harassing supervisor is conducting the official business of the company or acting on its behalf. Indeed, the Court admits as much in demonstrating why sexual harassment is not committed within the scope of a supervisor's employment and is not part of his apparent authority. See ante, at 755-760.
Thus although the Court implies that it has found guidance in both precedent and statute—see ante, at 755 ("The resulting federal rule, based on a body of case law developed over time, is statutory interpretation pursuant to congressional direction")—its holding is a product of willful policymaking, pure and simple. The only agency principle that justifies imposing employer liability in this context is the principle
4 See Restatement § 219, Comment e; § 261, Comment a (principal liable for an agent's fraud if "the agent's position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of business confided to him"); § 247, Illustrations (news-paper liable for a defamatory editorial published by editor for his own purposes).
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