794
Opinion of the Court
ment in creating hostile environment); Nichols v. Frank, 42 F. 3d 503, 508 (CA9 1994) ("The proper analysis for employer liability in hostile environment cases is . . . not whether an employee was acting within his 'scope of employment' "); Bouton v. BMW of North Am., Inc., 29 F. 3d 103, 107 (CA3 1994) (sexual harassment is outside scope of employment); see also Ellerth v. Burlington Industries, Inc., decided with Jansen v. Packaging Corp. of America, 123 F. 3d 490, 561 (CA7 1997) (en banc) (Manion, J., concurring and dissenting) (supervisor's harassment would fall within scope of employment only in "the rare case indeed"), aff'd, ante, p. 742; Lindemann & Grossman 812 ("Hostile environment sexual harassment normally does not trigger respondeat superior liability because sexual harassment rarely, if ever, is among the official duties of a supervisor"). But cf. Martin v. Cavalier Hotel Corp., 48 F. 3d 1343, 1351-1352 (CA4 1995) (holding employer vicariously liable in part based on finding that the supervisor's rape of employee was within the scope of employment); Kauffman v. Allied Signal, Inc., 970 F. 2d 178, 184 (CA6) (holding that a supervisor's harassment was within the scope of his employment, but nevertheless requiring the victim to show that the employer failed to respond adequately when it learned of the harassment), cert. denied, 506 U. S. 1041 (1992). In so doing, the courts have emphasized that harassment consisting of unwelcome remarks and touching is motivated solely by individual desires and serves no purpose of the employer. For this reason, courts have likened hostile environment sexual harassment to the classic "frolic and detour" for which an employer has no vicarious liability.
These cases ostensibly stand in some tension with others arising outside Title VII, where the scope of employment has been defined broadly enough to hold employers vicariously liable for intentional torts that were in no sense inspired by any purpose to serve the employer. In Ira S. Bushey & Sons, Inc. v. United States, 398 F. 2d 167 (1968), for example,
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