804
Opinion of the Court
In sum, there are good reasons for vicarious liability for misuse of supervisory authority. That rationale must, however, satisfy one more condition. We are not entitled to recognize this theory under Title VII unless we can square it with Meritor's holding that an employer is not "automatically" liable for harassment by a supervisor who creates the requisite degree of discrimination,4 and there is obviously some tension between that holding and the position that a supervisor's misconduct aided by supervisory authority subjects the employer to liability vicariously; if the "aid" may be the unspoken suggestion of retaliation by misuse of supervisory authority, the risk of automatic liability is high. To counter it, we think there are two basic alternatives, one being to require proof of some affirmative invocation of that authority by the harassing supervisor, the other to recognize an affirmative defense to liability in some circumstances, even when a supervisor has created the actionable environment.
There is certainly some authority for requiring active or affirmative, as distinct from passive or implicit, misuse of supervisory authority before liability may be imputed. That is the way some courts have viewed the familiar cases holding the employer liable for discriminatory employment
4 We are bound to honor Meritor on this point not merely because of the high value placed on stare decisis in statutory interpretation, supra, at 792, but for a further reason as well. With the amendments enacted by the Civil Rights Act of 1991, Congress both expanded the monetary relief available under Title VII to include compensatory and punitive damages, see § 102, 105 Stat. 1072, 42 U. S. C. § 1981a, and modified the statutory grounds of several of our decisions, see § 101 et seq. The decision of Congress to leave Meritor intact is conspicuous. We thus have to assume that in expanding employers' potential liability under Title VII, Congress relied on our statements in Meritor about the limits of employer liability. To disregard those statements now (even if we were convinced of reasons for doing so) would be not only to disregard stare decisis in statutory interpretation, but to substitute our revised judgment about the proper allocation of the costs of harassment for Congress's considered decision on the subject.
Page: Index Previous 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 NextLast modified: October 4, 2007