Jansen v. Packaging Corp. of America

DIANE P. WOOD, Circuit Judge,

joined by EASTERBROOK and ROVNER, Circuit Judges, concurring and dissenting.

Today the en banc court establishes two propositions of great importance for all future claims of sexual harassment by a supervisor. First, a majority of judges agrees that both Kimberly Ellerth and Alice Jansen properly preserved all aspects of their claims of sexual harassment in their EEOC filings and district court complaints. (In addition to this opinion, see also opinions of Chief Judge Posner, Judge Flaum, and Judge Easter-brook.) Second, a majority of judges supports a rule under which employers will be liable when their supervisory employees, acting within the scope of their employment or their delegated authority, engage in “quid pro quo” sexual harassment. In keeping with the panel opinion in Ellerth v. Burlington Industries, Inc., 102 F.3d 848 (7th Cir.1996) (Bauer, Rovner, and D. Wood), I analyze this as a problem of agency law, under which acts of “quid pro quo” harassment will almost always fall within the scope of the supervisor’s employment and thus result in employer liability under a respondeat superi- or theory. Other members of the court have offered their own explanations. Judge Flaum concludes that employer liability is “automatic” once the plaintiff shows that the supervisor conditioned employment consequences upon the receipt of sexual favors by wielding the authority actually delegated to him, and Chief Judge Posner has shown why this is an efficient outcome.

The important point is that a majority of the court agrees on several fundamental propositions. A plaintiff must prove that (1) the harasser had supervisory authority over her or him, (2) the employer authorized the supervisor to confer the tangible employment benefit in question (i.e., the “quid”), and (3) the supervisor demanded sexual favors as the price of that benefit. Furthermore, a majority of the en banc court agrees that the employer cannot escape liability in “quid pro quo” cases merely by showing that it has a policy against sexual harassment. These are *566important developments in this circuit’s sexual harassment law, which should not be overshadowed by our remaining differences.

Finally, a majority of the en banc court agrees that both Ellerth (if she did not waive the point) and Jansen brought forward enough evidence to survive summary judgment on their claims that their respective supervisors created hostile work environments through acts of sexual harassment.1 (Whether Ellerth waived her right to rely on that theory is a separate question on which we disagree. I think not, for reasons I address in the final section of this opinion.) The majority has not, however, reached a consensus on the appropriate legal framework for this class of cases. In my view, the rules governing employer liability under Title VII for a supervisory employee’s behavior do not depend on the kind of discriminatory or harassing conduct in which the supervisor has engaged; employer liability depends instead on whether the supervisor is acting within the scope of his authority, as I explain more fully below. I would therefore remand both cases for further proceedings.

The agency analysis I would use is consistent with any theory of discrimination that could be asserted under Title VII. Simply put, when a supervisory employee, acting within the scope of his authority as determined under the applicable state law, engages in discriminatory conduct, the employer should be liable under well recognized principles of respondeat superior, whether those acts are characterized for analytical purposes as “quid pro quo” demands, the infliction of a “hostile environment,” or other discriminatory acts. The employer should also be liable when the supervisor acts within the scope of his apparent authority to take the employment actions in question: hiring, firing, assigning tasks, or controlling the workplace environment. Conversely, if the supervisor uses neither actual nor apparent authority to take the employment action, then the employer should be liable only if the plaintiff shows that the employer knew or should have known about the harassing behavior. This approach is consistent with both the statute and the Supreme Court’s decisions in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), and Harris v. Forklift Sys. Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). It gives the district courts the manageable task of deciding questions of scope of authority instead of imposing on them the impossible task of parsing a supervisor’s every act to see if it belongs in the “quid pro quo” or the “hostile environment” category. Finally, it allows employers to contest the plaintiffs claim that the supervisor acted within the scope of his authority or abused his delegated authority. It therefore respects the Supreme Court’s admonition in Meritor not to impose “strict liability” on employers in this area.2

I

Before addressing the particular facts of the cases before us, it is useful to take a broader look at the legal principles that will govern them. Two fundamental issues arise. First, for purposes of employer liability, is there a principled distinction between “quid *567pro quo” and “hostile environment” claims? Second, under what circumstances will an employer be liable for the sexually harassing acts of its supervisory employees?

A. Forms of Sexual Harassment

Title VII prohibits discrimination on the basis of an individual’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). In both Meritor and Harris, the Supreme Court recognized that sexual harassment is a form of sex discrimination. It also recognized that sexual harassment is not confined to actions of the “quid pro quo” variety, in which someone demands sexual favors in exchange for a tangible job benefit or the promise of such a benefit. Sexually harassing actions that create a “hostile work environment” also fall within the statutory prohibition of sex discrimination. Similarly, courts have recognized that discrimination based on race might take the form of a hostile work environment, see, e.g., Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 673 (7th Cir.1993); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1270 (7th Cir.1991).

In the real world, sexual harassment does not sort itself into tidy categories. The same woman might be subject to both kinds of harassment from her supervisor at the very same time: he might repeatedly order her to his office, close the door, and stroke her leg, and on each occasion he might tell her that promotions will occur more readily if she has sex with him. The former conduct (made possible by the fact of his authority over her) would fall within the “hostile environment” category, but the latter would clearly be “quid pro quo” harassment. A rule making the employer strictly hable for part of this encounter, but liable only for negligence with respect to the other part, would make neither legal nor practical sense. This is because, unlike the example Chief Judge Posner suggests of the drunken worker who first injures a customer and later hits a pedestrian, in the harassment case the offending supervisor inflicts injury on a single victim, through a single act or course of conduct, and thus violates only one legal right. When this supervisor bombards an unwilling subordinate with unwanted sexual images, touching, vulgar words, or denigrating comments, only the most committed formalist would feel confident in saying when those actions cross the imaginary line from “hostile environment” harassment to “quid pro quo” harassment. By the same token, when the supervisor makes constant demands for sex in exchange for job benefits (maybe in jest, maybe not), the victim surely suffers from a “hostile environment” at the same time as she endures the “quid pro quo” harassment.

As Judge Flaum and those who have joined his opinion recognize, a supervisor is able to harass in a variety of ways: he might attempt to use his supervisory authority to obtain sexual favors from a subordinate employee in a form of sexual blackmail; he might use his supervisory authority to create a “hostile environment” for the subordinate, requiring her presence while offensive language or behavior goes uncorrected or even encouraged; or he might offend in the same way as an obnoxious co-worker or stranger, in circumstances where the authority he wields in the company is irrelevant. The first two cases are both forms of sex discrimination made possible by the employer’s delegation of authority to the supervisor; the third is harassment unrelated to the delegated authority. The critical question, for purposes of employer liability, turns on whether the supervisor has abused the powers the employer has entrusted to him; it does not turn on the way in which the supervisor has decided to abuse them.

A majority of this court would nonetheless make the employer’s liability for a supervisor’s actions depend on the artificial distinction between “quid pro quo” and “hostile environment” harassment. As the per curiam opinion reports, for actions that fall on the “quid pro quo” side of the line they would find the employer strictly liable, while for actions on the “hostile environment” side of the line they would find liability only if the employer was negligent. Such an approach relies on a line that will often be impossible to draw in supervisory harassment cases. Worse, it conflates two distinct inquiries: what counts as discrimination for purposes of *568Title VII, and when must the employer answer for it? There is nothing to justify the assumption that a supervisor’s actions will be all one type or all another in each individual case; indeed, the facts of Jansen and Ellerth show that this is not likely to be true. If the statute itself spoke in terms of different types of sexual harassment and called for different liability rules, we would be bound to follow it and to do the best we could. But the statute does no such thing. Nowhere does it suggest that the question of who speaks for the employer depends on the type of discrimination (sexual harassment, other sex discrimination, race discrimination, etc.) at issue.

One argument for superimposing such a distinction on the statutory language rests on the empirical assumption that employers’ ability to monitor will vary depending on the type of harassment at issue. Chief Judge Posner has suggested (and I agree) that a strict liability rule would generally cause an employer to monitor the supervisor’s behavior more closely. Nonetheless, he attempts to limit the force of this observation to the “quid pro quo” situation, postulating that (1) employers are better able to police the “quid pro quo” variety of harassment (on the assumption that multiple layers of bureaucratic review will constrain a supervisor’s “quid pro quo” actions), (2) these same layers of review will be ineffective for hostile environment claims, and (3) most claims will be filed against large companies. Putting to one side the assumption that the normal Title VII defendant will have’ all the layers of review on which he relies, there is no reason to believe that employers have so few tools against supervisors whose discriminatory actions inflict a “hostile environment” on subordinates. It is worth recalling how unbearable the workplace must become in order to be “hostile” as to be actionable under Title VII. The Supreme Court defined a hostile work environment as one “permeated with discriminatory intimidation, ridicule, and insult ... that is sufficiently severe or pervasive to alter the conditions of the victim’s employment.” Harris, 510 U.S. at 21, 114 S.Ct. at 370 (internal quotations and internal citation omitted). Compare Saxton v. American Telephone & Telegraph Co., 10 F.3d 526, 533-35 (7th Cir.1993) (co-worker on different occasions rubbing leg, kissing, and leaping out at employee from behind a bush not sufficiently severe or pervasive); Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1353-54 (7th Cir.1995) (fellow employee’s taking victim to striptease bar, shouting for her to get up and perform, comparing her breasts to those of the dancers, and propositioning her would not have been enough, standing alone, for a claim).

Employers are quite capable of monitoring a supervisor’s actions affecting the work environment without engaging in Orwellian surveillance. The alternative requirements for liability of sufficient severity or pervasiveness give focus to the employer’s efforts to ensure that its supervisors are not engaged in blatantly harassing acts or an ongoing pattern of significant sexual harassment, or for that matter acts of racial discrimination, conventional sex discrimination, or a host of other undesirable behaviors. Nothing systematic makes this kind of severe or pervasive condition harder to detect than a single, clearly unacceptable, act of “quid pro quo” harassment, which could easily occur behind closed doors with only the supervisor and the victim as witnesses. The relative advantage the employer has over the courts in bringing about a harassment-free workplace does not vary depending on the type of harassment. In addition, making it clear that employers must answer for their supervisors acting within the scope of the authority delegated to them will increase the deterrent power of Title VII, by leading employers to improve their training and supervision of these employees.

Just as the statutory language and empirical considerations do not support investing the distinction between types of harassment with the weight most of my colleagues would give it, neither do the Supreme Court’s decisions in this field. In Meritor the Supreme Court announced that the lower courts were to look to agency principles to determine when an employer would be liable for a supervisor’s sexual harassment. Meritor itself was argued as a hostile work environment ease before the Court, but the record shows that the supervisor had actually engaged in *569both types of harassment. Notably, the Court did not distinguish between the two varieties of harassment when it came to discuss employer liability. Instead, it stated that:

Congress wanted courts to look to agency principles for guidance in this area. While such common-law principles may not be transferable in all them particulars to Title VII, Congress’ decision to define “employer” to include any “agent” of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible.
For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency §§ 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability.
477 U.S. at 72, 106 S.Ct. at 2408 (emphasis added). This passage is phrased entirely in terms of Title VII as a whole, indicating that the Court was not creating a rule specific to sexual harassment cases — let alone “hostile environment” sexual harassment eases — but was instead construing the entire statute to require reference to agency principles. In addition, the Meritor Court viewed agency principles as limiting, not expansive, factors in determining liability, as compared with the strict liability rule the lower court had adopted there.

It is true that Judge Flaum’s approach more nearly accords with that of the Third, Sixth, Ninth, and Tenth Circuits, which have not questioned the legal basis of the distinction between “quid pro quo” and “hostile environment” claims. That distinction is now some eighteen years old, dating from Catherine MacKinnon’s pathbreaking book on Sexual Harassment of Working Women, published in 1979. Those courts, now joined by a majority of this court, have decided to make employer liability in this one area of Title VII law turn on the type of conduct at issue as well as the relationship between employer and employee.3 See Nichols v. Frank, 42 F.3d 503, 513 (9th Cir.1994); Bouton v. BMW of North America, 29 F.3d 103, 106 (3d Cir.1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1127 (10th Cir.1993); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 183 (6th Cir.1992). In my view, however, those courts have not taken to heart the Supreme Court’s admonition in Meritor to look to agency principles in Title VII cases. What they have called “strict liability” for “quid pro quo” cases is, in fact, nearly identical to the result produced by properly applied agency principles. As such, I have no quarrel with the results these courts have reached. In fact, Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir.1994), and Faragher v. City of Boca Raton, 111 F.3d 1530, 1536 (11th Cir.1997) (en banc), suggest that the Second and Eleventh Circuits have moved toward a uniform mode of analyzing employer liability for all sexual harassment. In Faragher, the Eleventh Circuit held that:

an employer may be held indirectly, or vicariously, liable for hostile environment sexual harassment:(l) when a harasser is acting within the scope of his employment in perpetrating the harassment, see Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1558 (11th Cir.1987) (citing Restatement (Second) of Agency § 219(1)); and (2) when a harasser is acting outside the scope of his employment, but is aided in accomplishing the harassment by the existence of the agency relationship. Sparks, 830 F.2d at 1559-60 (citing Restatement (Second) of Agency § 219(d)).

111 F.3d at 1536 (footnotes omitted, parentheticals in original).4 In Sparks, cited approvingly in Faragher, the plaintiffs sexual harassment claim was factually similar to *570Ellerth’s.5 In both Faragher and Sparks, the Eleventh Circuit relied on agency principles to assess the claims before it; it did not purport to impose “strict liability” on the employer.

B. Employer Liability for Supervisor’s Actions

What, then, are the governing “agency principles” and where do we find them? As I indicate below, I agree with Judge Easter-brook that state law must furnish the rule of decision here, but even if we were creating a new federal common law of agency, it would be necessary to ground those rules in something. Chief Judge Posner has launched a broadside attack on the Restatement (Second) of Agency, noting that it is not a statute and need not be treated as “The Way.” Few would disagree with that proposition. The Restatement nevertheless stands as a useful reference point for the common law of agency, and its principles have been adopted by many state and federal courts as they have engaged in the very common law process he describes. See, e.g., Haddon v. United States, 68 F.3d 1420, 1423-24 (D.C.Cir.1995); Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 626 A.2d 445, 461-64 (1993); Hinshaw v. Board of Comm’rs of Jay County, 611 N.E.2d 637, 640 (Ind.1993); Olson v. Connerly, 156 Wis.2d 488, 457 N.W.2d 479, 483-84 (1990); Deal v. Byford, 127 Ill.2d 192, 130 Ill.Dec. 200, 537 N.E.2d 267, 272-73 (1989).

I see no reason to disregard the accumulated body of agency law that accepts the Restatement’s propositions, any more than I would disregard state law developments that move beyond it. We owe respect to all of the varying sources of agency law to which the Supreme Court directed our attention in Meritor. The harder question, as Judge Easterbrook has pointed out, is to ascertain which body of agency law governs our interpretation of 42 U.S.C. § 2000e(b) (making employers liable for acts of their “agents,” see Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1422 (7th Cir.1986)):(1) a new federal common law of agency, applicable only to sexual harassment cases and invented out of whole cloth; (2) a federal common law of agency that borrows its rules from the appropriate state law; or (3) state law directly. As Judge Easterbrook has argued at greater length, the first of these options is inappropriate in light of the Supreme Court’s recent reiteration of the rule that state law should be incorporated as the federal rule of decision (when a statute is silent) in the absence of a significant conflict with, or threat to, a national interest. See Atherton v. FDIC, — U.S. —, —, 117 S.Ct. 666, 673, 136 L.Ed.2d 656 (1997); see also United States v. Kimbell Foods, Inc., 440 U.S. 715, 740, 99 S.Ct. 1448, 1464-65, 59 L.Ed.2d 711 (1979). It is hard to see how the need for national uniformity is any greater for the definition of the term “agent” in Title VII than it is in many other areas where federal courts routinely turn to state law for underlying property and contract rules. For example, the tax and bankruptcy laws — matters of intense national interest — rely on state laws to determine whether property rights have been created and the extent of those rights. See United States v. National Bank of Commerce, 472 U.S. 713, 722, 105 S.Ct. 2919, 2925, 86 L.Ed.2d 565 (1985) (“[I]n the application of a federal revenue act, state law controls in determining the nature of the legal interest which the taxpayer had in the property”); Butner v. United States, 440 U.S. 48, 54 & n. 9, 99 S.Ct. 914, 918 & n. 9, 59 L.Ed.2d 136 (1979) (“Notwithstanding this requirement as to uniformity the bankruptcy acts of Congress may recognize the laws of the state in certain particulars, although such recognition may lead to different results in different States.”) State laws also determine if a state employee serves “at will” or not in § 1983 cases, see Border v. Crystal Lake, 75 F.3d 270, 273 (7th Cir.1996); and federal courts use state statutes of limitations for cases under 42 U.S.C. §§ 1981 and 1983. See, e.g., Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); Robertson v. Wegmann, 436 U.S. 584, 590-91, 98 S.Ct. 1991, 1995-96, 56 L.Ed.2d 554 (1978). See *571also the examples cited in Judge Easterbrook’s opinion at 553-554.

I agree with Judge Easterbrook that the law governing the question who is an agent of an employer for Title VII purposes must be, under these cases, state law. To his discussion, I add only two observations. First, the administrative consequences of his point about “vertical” uniformity should not be underestimated. The existence of side-by-side, but inconsistent, federal and state rules on employer responsibilities for acts of their supervisory agents will make it exceedingly difficult for employers in Illinois, Indiana, and Wisconsin (not to mention other states) to establish a single coherent management structure. Second, the majority’s rejection of respondeat superior liability for supervisory “hostile environment” cases means that the same woman who under state law will be able to hold her employer liable for a supervisor’s violation of state civil rights statutes or for state torts will find her way to federal court barred. Victims of sexual harassment should be aware that the majority’s approach has made them second-class citizens, both vis — vis their counterparts with state law claims and vis — vis other Title VII plaintiffs.

The law of agency, as the Supreme Court recognized in Meritor, is best suited to provide the answer to the question of when the employer must answer for the supervisor’s actions, no matter what the supervisor’s behavior. For present purposes, I discuss agency principles generally rather than undertaking a specific examination of Illinois’s rules, both because I have no reason to believe that Illinois is an outlier on these matters and because in my view a detailed examination of Illinois’s rules would be better performed in light of a more complete record. As reflected in Restatement § 219, agency law typically draws a fundamental distinction between acts within the scope of an agent’s employment and acts outside the scope of employment. An initial question before us today is how, if at all, that structure applies to the relationship between a supervisory employee of a principal (the employer) and a subordinate employee of the same principal. A second preliminary question is whether this analysis operates differently in Title VII cases from the way it normally applies for other torts. When one considers the tripartite relationship among employer, supervisor, and subordinate employee, fully taking into account the responsibilities each has, the ability of each to take corrective action, and the incentive each has to act, the conclusions are inescapable that (a) general principles of traditional agency law provide a suitable analytical structure, and (b) nothing in the law of discrimination requires modification of this analysis.

The key relationship for the eases before us is the one between the employer and the supervisory employee, for the simple reason that the question is whether the employer should be liable for the supervisor’s actions. Under established principles of law, the relationship between employer and supervisory employee is plainly that of principal to agent. See Moy v. County of Cook, 159 Ill.2d 519, 203 Ill.Dec. 776, 640 N.E.2d 926, 927 (1994); Kansallis Finance Ltd. v. Fern, 421 Mass. 659, 659 N.E.2d 731, 733-34 (1996); Ruiz v. Conoco, 868 S.W.2d 752, 762-64 (Tex.1994); Western Elec. Co. v. Brenner, 41 N.Y.2d 291, 392 N.Y.S.2d 409, 360 N.E.2d 1091, 1094 (1977); Restatement (Second) of Agency § 218. In old-fashioned agency parlance, the employer is the “master” and the supervisory employee is the “servant.” However denominated, the agency relationship exists for functional reasons: the employer hired the supervisory employee to perform specified tasks for the employer, and the employer controls or has the right to control the supervisor’s conduct in performing these tasks. See Leon v. Caterpillar Indus., Inc., 69 F.3d 1326, 1333 (7th Cir.1995); United States v. Balistrieri, 981 F.2d 916, 930 (7th Cir.1992); Valenti v. Qualex, Inc., 970 F.2d 363, 368 (7th Cir.1992); Central States Trucking Co. v. J.R. Simplot Co., 965 F.2d 431, 433 (7th Cir.1992). Occasionally the question arises whether the “control” element is weak enough that the agent should be characterized as an independent contractor, see Kittlaus v. United States, 41 F.3d 327, 330 (7th Cir.1994), but that is plainly not an issue in these cases, and will virtually never be an issue in the modern business *572firm where the employee receives a salary for her services.

It is important to bear in mind that Title VII itself applies to all but the smallest business enterprises in our economy. Thus, when we consider the principal/agent relationship between employer and supervisor, we may be speaking of anything from a 692,800-employee company like General Motors, see Hoover’s Handbook of American Business, vol. 1, at 659 (1996), with countless layers of management between the CEO and the line employees, to a firm that barely meets the jurisdictional minima required for Title VII. Cf. Walters v. Metropolitan Educational Enterprises, — U.S. —, 117 5.Ct. 660, 136 L.Ed.2d 644 (1997) (describing how to compute whether an employer has 15 employees over a 20-week period annually, as required by 42 U.S.C. § 2000e(b)). Our approach must therefore be flexible enough to cover the incredible diversity of employers that fall within the ambit of the statute.

How, if at all, should the employer’s responsibility for the supervisor’s actions be affected if the victim of the supervisor’s conduct happens also to be employed by the firm and under the supervisor’s control? The employer’s knowledge that one employee is under the supervision of another (to the extent dictated by the employer’s own policies) certainly makes injury from the supervisor to the subordinate more foreseeable to the employer than injury to a stranger. That only underscores the importance of placing the responsibility on the employer to monitor the supervisor’s job-related actions to ensure that he is not abusing the powers entrusted to him. Rather than assuming that subordinate employees have better access than, say, customers to a firm’s internal mechanism for resolving discrimination complaints (although even that notion is questionable, since well-run companies normally offer complaint avenues for their customers) we should ask what job-related harm is foreseeable and who is in the best position to prevent it. Typically, we distinguish between persons who are able to contract around potential injury from a transaction and those who are strangers. On that basis, the subordinate employee stands in a position much closer to the stranger, since no amount of contracting can prevent her from becoming the victim of a supervisor’s sexual harassment. See Alan 0. Sykes, The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines, 101 Harv. L.Rev. 563 (1988); Alan 0. Sykes, The Economies of Vicarious Liability, 93 Yale L.J. 1231 (1984). Even the common law “fellow servant” rule did not bar recovery against the employer when the injury occurred at the hands of a “vice-principal,” who could be anyone to whom the master had delegated his common law duties. See Prosser and Keeton on Torts, § 80, at 572 (5th ed.1984). By analogy, the subordinate suffers injury from a “vice-principal” — literally, one who stands in the place of the principal — when a supervisor harasses her.6 Whether seen from the vantage point of foreseeability or in light of the turn-of-the-eentu-ry “fellow servant” rule, employer liability follows.

If the injury flows from an intentional tort committed by the employee, such as the use of force or defamation, the employer will still be liable if the act was not unexpectable given the employee’s duties. See, e.g., Deal, 130 Ill.Dec. 200, 537 N.E.2d at 272-73 (apartment complex owner liable for apartment inspector’s attack on tenant); Aliota v. Graham, 984 F.2d 1350, 1358-59 (3d Cir.1993) (employer can be liable for defamation); Molton v. City of Cleveland, 839 F.2d 240, 249 (6th Cir.1988) (city potentially liable because police officer’s assault and battery were not unexpectable); Rawling v. City of New Haven, 206 Conn. 100, 537 A.2d 439, 443 (1988) (genuine fact question whether police officer was acting within the scope of his employment when he committed a sexual assault); Daigle v. City of Portsmouth, 129 N.H. 561, 534 A.2d 689, 700 (1987) (tortious *573or criminal character of officer’s acts does not automatically remove them from scope of employment). See generally Restatement §§ 245, 247. These cases demonstrate that an intentional tort is not as a matter of law unforeseeable or outside the scope of employment. (I note as well that the injuries suffered by victims of sexual harassment can include both severe psychological harm and pecuniary injury from decreased productivity and loss of job opportunities. We should not trivialize the harm that harassment can inflict.)

Neither this court nor' any other has had any trouble applying these agency principles to the various claims of discrimination apart from sexual harassment that are cognizable under Title VII and related laws. See, e.g., Hennessy, supra, 69 F.3d 1344 (termination based on sex or pregnancy); Balistrieri, supra, 981 F.2d 916 (race discrimination in housing context); Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518 (11th Cir.1992) (disparate pay based on gender); Hunter, supra, 797 F.2d 1417 (race discrimination); Young v. Southwestern Sav. & Loan Ass’n, 509 F.2d 140 (5th Cir.1975) (hostile religious environment). Sexual harassment is no different and no harder to detect than other forms of discrimination. We know well that all forms of discrimination can be practiced subtly as well as blatantly. If an African-American employee charges racial discrimination and wants to prove it by showing that her supervisor routinely used racial epithets when talking to her, she would face the same evidentiary problems as she would if the charge were either “hostile environment” or “quid pro quo” sexual harassment. Evidentiary concerns are appropriately addressed through the summary judgment process, not by engrafting liability standards onto the law that the language of the statute does not support.

Agency principles therefore apply in Title VII eases for purposes of deciding when an employer must answer for its supervisory employees’ discriminatory acts to the same extent they do elsewhere. The first question in any case dealing with a supervisor’s harassment should be whether the supervisor’s action was within the scope of his employment. In order to answer that factual question, criteria like those suggested in Restatement (Second) §§ 228 and 229 are useful benchmarks. Section 228 is worth quoting in its entirety, as a useful summary of the concept of “scope of employment” and how it differs from the idea of “strict liability”:

(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

In section 230, the Restatement repeats the well recognized rule that “[a]n act, although forbidden, or done in a forbidden manner, may be within the scope of employment.” See City of Chicago v. Matchmaker Real Estate Sales Ctr., Inc., 982 F.2d 1086, 1096 n. 12 (7th Cir.1992). See also Aliota, 984 F.2d at 1358; Vlotho v. Hardin County, 509 N.W.2d 350, 354 (Iowa 1993); Walker v. Crigler, 976 F.2d 900, 904 n. 4 (4th Cir.1992); Huddleston v. Union Rural Elec. Ass’n, 841 P.2d 282, 292 (Colo.1992) (en banc); Ermert v. Hartford Ins. Co., 559 So.2d 467, 476-77 (La.1990); Pyne v. Witmer, 129 Ill.2d 351, 135 Ill.Dec. 557, 543 N.E.2d 1304, 1309 (1989); Yates v. Avco Corp., 819 F.2d 630, 636 (6th Cir.1987); Simmons v. United States, 805 F.2d 1363, 1369 (9th Cir.1986); Dickinson v. Edwards, 105 Wash.2d 457, 716 P.2d 814, 819 (1986) (en banc).

Contrary to Judge Flaum’s suggestion in footnote 1 of his opinion, each of the four criteria described in § 228 imposes a meaningful limitation on the scope of employment, thereby ensuring that employers will not be held liable for the “frolics and detours” of their employees or for acts that are unfore*574seeable to the employer.7 His criticisms of these criteria all focus so exclusively on the harassing behavior that they would exclude all “mixed motive” cases, notwithstanding the fact that agency law has always recognized this type of liability. The focal point must be the conduct the employer has hired the supervisor to perform. It is here that Burlington and Packaging Corporation take a misstep. They argue that courts must ask whether the supervisor was employed to commit the intentional tort of sexual harassment. All an employer has to do to prevail under their view — either to show the lack of actual authority or apparent authority — is to show that the supervisor was not employed for the purpose of engaging in sexual harassment. Merely to state this is to show what a preposterous standard it would be. We have already expressly held that “[a] principal cannot free itself of liability by delegating to an agent the duty not to discriminate.” Matchmaker Real Estate, 982 F.2d at 1096. That principle applies with equal force here.

In my view, the proper inquiry on this point is whether the supervisor, acting at least in part with the purpose of serving the employer, committed the acts of harassment as he exercised the authority (actual or apparent) the employer conferred on him: hiring, firing, assigning work, disciplining other employees for harassing behavior, and the like. It may help to consider the authorized time and space limits to define which incidents were work-related, although in today’s mobile world they are hardly conclusive. The question whether the supervisor’s conduct is actuated, at least in part, by a purpose to serve the master is undoubtedly of central importance. Agency law has always made it clear that the employer is not liable for acts of the agent that exclusively serve the agent’s personal interests, just as it has also made it clear that employers can be liable if the motives are mixed. The conduct of the supervisor that must be assessed is not the act of harassment in isolation, but instead his broader course of action. If the supervisor is engaged in his own business or is acting on his own time, then his acts will normally not be within the scope of his employment unless he is acting with apparent authority. Finally, an intentional tort like sexual harassment plainly requires foreseeability. Some forms of sexual harassment are easily foreseeable, while other severe forms may be so far from the norm that the employer should not be held liable in the absence of negligence. In that connection, I believe that the Fourth Circuit may have gone too far in Martin v. Cavalier Hotel Corp., 48 F.3d 1343 (4th Cir.1995), in finding violent rape to be something undertaken at least in part with the employer’s interests in mind, and thus something foreseeable to the employer.

If a court determines that a supervisor was acting within the scope of his employment or abused his supervisory authority, then employer liability follows under the well-recognized principles of agency law noted above. If the court finds to the contrary, then it must consider whether the employer is liable under any other theory. Two possibilities exist. If the employer was negligent in addressing the sexual harassment, then every member of this court agrees liability follows. See, e.g., Zimmerman v. Cook County Sheriff’s Dept., 96 F.3d 1017, 1018 (7th Cir.1996); Baskerville v. Culligan Int’l Co., 50 F.3d 428, 432 (7th Cir.1995); Carr v. Allison Gas Turbine Div. Gen. Motors, 32 F.3d 1007, 1012 (7th Cir.1994) (Coffey, J., dissenting on other grounds). (I fear that employers may be baffled by the “heightened duty of care” that Judge Flaum would impose under the rubric of negligence for hostile environment cases involving supervisors: does this mean closer monitoring? a more flexible notice requirement? a duty to take more extensive preven*575tive measures? If this becomes the law of the Circuit, I predict a considerable period of uncertainty while we answer these and similar’ questions.) Alternatively, as I have already noted, if the supervisor had apparent authority to take the employment actions at issue — again, not apparent authority to harass (which is impossible), but apparent authority to hire, assign, supervise, etc. — and no other limitation derived from agency law applies, then liability should result. Apparent authority is just the shadow of actual authority; it exists when third parties reasonably believe the principal gave the agent authority to conduct his affairs, even if no such agreement exists. (This means that the employer can take steps to negate the appearance of authority. Such steps might well show that the employee’s belief in the supervisor’s alleged power to promote or to fire, for example, would be unreasonable.) The existence of a policy against sexual harassment does not change this result, although it both can and should reduce the incidence of harassment and provide a mechanism for amicably resolving many claims.

No matter what the basis for employer liability, I do not disagree that a strong, credibly enforced policy against sexual harassment can affect a plaintiffs case at the damages stage. This is a highly fact-specific inquiry, however, which would arise only if a trier of fact found that liability existed for sexual harassment. It therefore has little bearing on the ease before us today.

II

Proper application of the principles I have described requires an appreciation of the facts of the two cases before us. Both appeals come to us from grants of summary judgment on behalf of the respective employers. The following accounts of the facts are therefore taken in the light most favorable to the plaintiffs.

A. Jansen v. Packaging Corporation of America

Alice Jansen’s experience as A1 Antoni’s secretary at the Tooling Services Department of Packaging Corporation of America (PGA) was not a happy one. Jansen was hired on August 2, 1991, to work for Antoni. As her supervisor, Antoni was responsible for evaluating Jansen’s performance (which determined her raises) and providing input into her hiring and firing. Antoni’s objectionable behavior ran the gamut from sexually suggestive remarks and unwanted touching to the delay of tangible job benefits (and the threat of further “quid pro quo” actions). At work, he frequently asked Jansen what she thought about “quickies;” he told her there was time for a “quickie” while patting his crotch; he. requested oral sex; and he bragged about his former secretary’s willingness to give him “quickies.” In September 1992, Antoni was responsible for completing a performance review of Jansen’s work. Instead of returning the review promptly to the personnel department, Antoni held it back (along with Jansen’s raise) for several months. Jansen made several inquiries about the review, to which Antoni responded by patting his crotch and saying, “I haven’t forgotten about your review, it’s on my desk.”

In the end, Antoni gave her a “fully satisfactory” review and she received her raise, retroactive to September (although with no interest, as far as the recoi’d shows), but his harassing behavior did not stop. On January 19, 1993, Jansen filed a complaint about him, informing PCA’s Human Resources Director, Paul Mígala, that Antoni had made unwelcome sexual comments to her. Later the same day Mígala and Hank Weil (Antoni’s supervisor) met with Jansen to discuss her complaint. At that meeting, Jansen suggested contacting Sonja Marcieiak to corroborate her allegations and noted that she had heard that Antoni’s previous secretary, Vicki Krompton Wiley, had been subjected to the same kind of harassment. Jansen named two other employees who had sexual relationships with Antoni and gave Mígala the informal log she had kept of Antoni’s harassing actions. At the conclusion of the meeting, Mígala assured Jansen that the company would investigate her claims thoroughly.

The investigation that ensued, however, was not what Jansen had in mind. It began with an interview of Antoni, who denied all of Jansen’s allegations and accused her of inap*576propriate behavior. At that point, rather than following up with the names of people Jansen had provided, PCA interviewed nine other employees (including Marciciak). Marciciak confirmed that Antoni had once made an unwelcome sexual comment to her; that she had seen Vicki Wiley crying because of Antoni’s comments about “blow jobs” and the like; and that Jansen had complained about Antoni to her. She could not directly corroborate any of the incidents with Jansen, however, for the simple reason that she had not seen them. The other people that PCA interviewed (in lieu of Jansen’s suggested witnesses) were similarly unable to back up Jansen’s story directly. The investigation also focused on Antoni’s accusations about Jansen. Ultimately, Mígala and Weil decided that the evidence of Antoni’s sexual harassment was inconclusive. They passed that word along to Jansen in a meeting, and at the same time they told her that their investigation had uncovered some potentially improper conduct on her part as well. At that time, they gave Jansen a copy of the company’s sexual harassment policy. They also counseled Antoni about sexual harassment, notwithstanding their “inconclusive” investigation.

This was not the first time PCA had heard complaints about Antoni’s behavior. Tami Long had been Antoni’s secretary before Wiley. Long testified that soon after she started work at PCA, in December 1987, Antoni began making crude and suggestive remarks to her, eventually asking her to engage in oral sex. At one point, PCA’s director of personnel called Long into her office to discuss reports of Antoni’s sexual harassment. Long complied, but asked the director not to launch a formal investigation into the charges. Instead, the director “counseled” Antoni “without directly accusing him.” The evidence also indicates that PCA knew that Wiley also had significant problems working for Antoni. Although she never complained directly to management about Antoni, Wiley told Mígala when she left the company that it was “because of a personal conflict with A1 Antoni,” and that “another woman should not be put in that environment and have to go through what I did.” Mígala got the message. Following Wiley’s resignation, Mígala directly counseled Antoni (again) about sexual harassment. Jansen’s complaint was thus at least the third time the company had heard about Antoni’s proclivities.

After Jansen’s complaint, Antoni began treating her differently. He took a “work to rule” approach to subjects like explaining her absence when she left her desk and made her the only secretary required to take her lunch break between 12:00 p.m. and 12:30 p.m. (the others could take their half-hour lunch breaks at their discretion). He stripped her of responsibilities such as answering his telephone calls and preparing the payroll, and took to locking his office, which made Jansen’s job duties of delivering his mail and messages considerably more difficult. Although he restored the payroll duties when Jansen complained to Mígala, Antoni delayed Jansen’s performance review and her raise. Antoni also allegedly engaged in some “self-help” retaliation, slashing the tires of Jansen’s car and wrapping her car antenna around her rearview mirror. Jansen ultimately filed a complaint with the EEOC claiming sexual harassment on February 26, 1993. In November 1993, the EEOC issued her right to sue letter, and she filed this suit on January 26, 1994, claiming sexual harassment and retaliation in violation of Title VII and raising several state law claims. Following discovery, the district court granted PCA’s motion for summary judgment on all counts.

B. Ellerth v. Burlington Industries

Kimberly Ellerth first interviewed for a marketing job at Burlington Industries in March 1993. After her initial interview with Mary Strenk Fitzgerald, a National Accounts Manager in the Mattress Ticking Division, she was invited back to interview with Theodore Slowik, the Vice President of Sales and Marketing for that division. Ellerth found her meeting with Slowik disturbing because he asked her highly personal questions such as whether she and her husband were planning on having a family and “practicing” at it, and he stared conspicuously at her breasts and legs. About a week after the Slowik interview, Burlington offered Ellerth a job in which she would report to Fitzgerald, who in *577turn reported to Slowik. Ellerth accepted the position and joined Fitzgerald as the only other employee in the Chicago office.

Given the management structure, Ellerth was required to see and communicate with Slowik on a regular basis. On average, she saw him one or two days every month or two, either in Chicago, in New York, or at other corporate locations. She spoke with him on the telephone approximately once a week. These encounters, both verbal and direct, were characterized by a constant barrage of sexual comments, innuendo, and occasionally more explicit threats. Before one of El-lerth’s trips to New York in the summer of 1993, Slowik telephoned her and spoke suggestively to her. Once she got to New York, at least two offensive incidents occurred. First, Slowik told Ellerth a number of off-color, offensive “jokes” during a meeting in his office. Second, at a business lunch with Ellerth and Angelo Brenna, Burlington’s Vice President of International Sales, Slowik told a number of sexually offensive “jokes” and rubbed Ellerth’s knee under the table. She pulled her leg away when he touched it. As the three left the restaurant, Slowik walked several feet behind Ellerth with Brenna, commented ‘You have got great legs, Kim,” and then asked Brenna what he thought. Ellerth complained about Slowik’s behavior to two other Burlington employees as soon as she returned to the office.

Slowik continued making sexually offensive comments to Ellerth, both about her and about other women. These encounters were all in conjunction with business meetings. After one business dinner in Greensboro, North Carolina, Burlington’s corporate headquarters, Slowik invited Ellerth to join him at the lounge of the hotel where they were both staying and she felt obliged to accept. While there, Slowik commented that the female band members had nice breasts, nice legs, and nice, skimpy outfits. Looking at Ellerth’s breasts, he then said, ‘You are a little lacking in that area, aren’t you, Kim?” When she did not respond, Slowik told her that she “ought to loosen up,” and then, more threateningly, he said, “You know, Kim, I could make your job very hard or very easy at Burlington.” Ellerth understood this to mean that she would have to have sex with Slowik to succeed at the company.

After the Greensboro trip, Slowik’s telephone calls increased in number. Although they were brief, they normally included sexually harassing comments. Slowik would talk about Ellerth’s body (particularly her legs) and would ask about her “practice” to have a family. On several occasions, Slowik refused to give her special permission to do things for customers until she described her clothing to him. He directly stated that her job would be much easier if she wore shorter skirts. On another occasion, he made comments in front of another employee that implied that Ellerth had been performing fellatio on him.

In addition to the harassing comments, Slowik repeated his unwanted touching of Ellerth on at least two occasions. He patted her rear at the annual company holiday party, and rubbed her knee during an interview for a promotion to the position of Sales Representative for the Midwest territory while asking her whether the frequent travel associated with the new position would make her husband miss her. After the interview, the previous Midwest sales representative told Ellerth that Slowik (who had final decision-making responsibility for the promotion) was reluctant to promote her because she was “arrogant.” Patrick Lawrence, who was also involved in the interviews and also reported to Slowik, confirmed that comment. When Ellerth confronted Slowik with this information, he admitted calling her arrogant and told her he was hesitant to promote her. Ellerth asked, “[I]s it because I’m not loose enough for you, Ted?,” and Slowik replied in the affirmative. Nevertheless, two weeks later Slowik called to tell Ellerth that she had received the promotion, although he could not resist adding a sexually inappropriate comment at the end of the conversation that reduced Ellerth to tears.

Burlington’s employee handbook included a brief statement that “[t]he company will not tolerate any form of sexual harassment in the workplace_ If you have any questions or problems, or if you feel you have been discriminated against, you are encouraged to talk to your supervisor or human *578resources representative or use the grievance procedure promptly.” In the next paragraph of the “Employee Relations” section, Burlington’s handbook maintained that it had an “Open Door Policy”:

Burlington’s Open Door Policy means just what it says — management’s door is always open to you whenever you have ideas, suggestions or concerns about work-related matters. Most often, you will want to speak with your supervisor first. But if you feel more comfortable talking with your human resources manager or department manager, please don’t hesitate to do so. They will do their best to answer your questions or help solve a problem.

Defendant’s Appendix, Exh. F at 3. Although Ellerth did not talk either to Lawrence or the human resources manager, she did make her complaints known in several ways. First, of course, she had complained directly to Slowik himself, who certainly stood in a supervisory relationship to her. Second, in early 1994, she complained to Donna Thibi-deau, Burlington’s Customer Service Manager, that Slowik was sexually harassing her. Thibideau told her that Slowik also may have harassed another Burlington employee. Finally, Ellerth complained to several other Burlington employees, including Sherry Hester, a Customer Service Representative, and Brett Schneider, a Sales Representative.

In May 1994, Ellerth and her new supervisor, Lawrence, met to discuss ways in which they could improve office procedures. At that time, Lawrence made no mention of customer complaints about Ellerth’s own performance. Shortly thereafter, Lawrence and Thibideau received two such complaints, which prompted a May 22, 1994, memorandum from Lawrence cautioning Ellerth to be more careful about returning telephone calls. On May 31, 1994, Ellerth left a message on Lawrence’s answering machine telling him that she was quitting. She faxed him a letter to the same effect. Three weeks later, she sent Lawrence a detailed explanation of her reasons for quitting, which informed him directly for the first time about Slowik’s harassing behavior, including the unwanted touching and lecherous looks. She explained that both she and her husband had feared that her job would be jeopardized if she had complained any more about Slowik’s actions than she had done. On October 12, 1994, Ellerth filed charges of sexual harassment with the Illinois Department of Human Resources (IDHR) and the Equal Employment Opportunity Commission (EEOC). This suit followed after the EEOC sent its right to sue letter on November 30,1994. As in Jansen’s case, after some time for discovery the district court granted Burlington’s motion for summary judgment on all counts.

C. Pleading Issues

Both PCA and Burlington raised an initial procedural objection to the plaintiffs ability to proceed on their “quid pro quo” theories at all. In Jansen’s case, PCA claims that Jansen did not mention the factual basis for her “quid pro quo” claim in her EEOC complaint and thus that she should not be able to raise the claim now; it also argues that allegations about her “quid pro quo” claim were “utterly absent” from her complaint. Burlington similarly argues that Ellerth’s Title VII complaint did not adequately give it notice that she was claiming “quid pro quo” harassment as well as “hostile environment” harassment. Neither PCA’s nor Burlington’s claims has merit even if we accept the distinction between “quid pro quo” and “hostile environment” harassment. Jansen’s EEOC charge made it clear that she was complaining about harassment, and it was supported by her affidavit, which gave several specific examples of the harassing conduct. This suffices to show the kind of factual relationship between the conduct described in the EEOC charge and that raised in the lawsuit that our cases have required. See, e.g., Cheek v. Western and Southern Life Insurance Co., 31 F.3d 497, 500 (7th Cir.1994). Jansen’s complaint also alleged facts sufficient to state a claim encompassing “quid pro quo” harassment under the liberal pleading standards of Fed.R.Civ.P. 8(a). See Vidimos, Inc. v. Laser Lab Ltd., 99 F.3d 217, 222 (7th Cir.1996); Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992). Ellerth’s EEOC charge and her Title VII complaint were similar. In the charge, she asserted that Slowik had sexually harassed her and that she had been “compelled to resign *579... due to [the continued] hostile offensive and abusive work environment created by SLOWIK’s harassment and my opposition to sexual harassment by SLOWIK.” Her district court complaint alleged that she was “inappropriately touched and sexually harassed in her place of employment,” and her brief in opposition to summary judgment argued that the harassment could be considered as the “quid pro quo” variety. Under my view, of course, both women’s EEOC charges and complaints easily satisfy the burden of pleading that sex discrimination in the form of harassment occurred.

Ill

Under the standards outlined earlier in this opinion, both Jansen and Ellerth showed enough to survive summary judgment. Jansen’s performance evaluation was held up for a significant period of time while her supervisor, Antoni (acting within the scope of his authority) both threatened her with an adverse job action if she did not have sex with him and imposed the immediate detriment of the delay when she refused to acquiesce. The threat was clearly enough to qualify as an adverse job action. The view espoused by a number of my colleagues that threats should never be enough to support liability, as a matter of law, would read out of the law all “quid pro quo” claims in which the victim acquiesces — a rule that would directly conflict with the Supreme Court’s Meritor. See Meritor, 477 U.S. at 68, 106 S.Ct. at 2406. Furthermore, Jansen raised direct evidence of discrimination, see Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir.1994). The mere fact that a jury might choose to believe PCA’s alternative explanation for the delay — that it was just a consequence of bureaucratic inertia — is of no importance on summary judgment, where we must draw inferences in Jansen’s favor. From Jansen’s perspective, the delay acted as a continuing demand for sexual favors, which caused its own injury, and it appears to have deprived her of at least the interest she would have earned on a timely raise. See In the Matter of Milwaukee Cheese Wisconsin, Inc., 112 F.3d 845, 849 (7th Cir.1997) (“[compensation deferred is compensation reduced by the time value of money”).8

Jansen also showed that Antoni harassed her in numerous other ways that fell within the scope of his authority. He was going about his business for PCA, taking advantage of his supervisory powers, while he badgered her, offensively pestering her for “blow jobs” and the like, and manipulating her work assignments based on her reactions to him. The one action he took that was clearly unrelated to his supervisory position was his alleged vandalism of her ear. No authority that PCA gave him enabled him, helped him, or affected his ability to take knife to tire; Jansen’s remedy here lies in the tort law of Illinois, not Title VII. For the record, although it is unnecessary for me to reach the point, I agree with those who believe that Jansen’s complaints to the company, combined with its previous experience with Anto-ni, were enough to preserve her rights under a negligence theory.

Ellerth also brought forward enough to defeat summary judgment. Her evidence indicates that Slowik, acting within the scope of his authority (and, as some would put it, using his delegated authority), refused to give her special permission for work projects until she described her physical appearance to him. Interpreted in light of his earlier comment that he “could make [her] job very hard or very easy at Burlington,” a jury could find that she had to play the role of sex object in order to obtain desirable work assignments (and thus to advance in the company). The numerous incidents in which Slowik withheld permission for assignments until Ellerth satisfied his demands could, if believed by a factfinder, support a finding that harassment occurred.

Ellerth showed that Slowik, acting within the scope of his employment, poisoned the environment for her in other ways as well. As the district court conceded, the constant sexually suggestive remarks, the criticism of *580the size of her breasts, the importunements to be “looser,” and the unwanted and uninvited touchings would have been enough to make work onerous for any woman. This' court would look foolish indeed to the public at large if we appeared unable to distinguish between three friendly pats on the back and three acts of sexually oriented stroking. If a supervisor cannot tell the difference, he needs remedial counseling, not a free pass. No one wants to be a wet blanket on office romances, but the simple rule, reflected in every creditable sexual harassment policy in the country, is that unwanted touching is verboten. Would-be suitors in the office must just wait until their interest is reciprocated. Slowik knew that Ellerth did not welcome his advances, because she told him so. Obviously, there are two sides to this story, and the jury may not believe Ellerth in the end. But she is entitled on the facts she has shown thus far to try to persuade them that hers is the more credible account.

My conclusion that Slowik acted within the scope of his authority and abused his supervisory authority makes it unnecessary for me to reach the negligence issue. Those who are attempting to pigeonhole harassment cases have decided unfortunately that Ellerth waived this point by her statement disclaiming reliance on Restatement § 219(2)(b). I disagree. It is ironic that those who criticize undue reliance on the Restatement have seized on Ellerth’s passing reference to its language as a way of finding that she waived the right to support her hostile environment allegations on a negligence theory; one can reject the Restatement and still turn to the Title VII rules on negligence. Indeed, her brief stressed the point that she notified a number of individuals at Burlington about Slowik’s harassing behavior, which would be relevant only if she thought Burlington’s knowledge might be relevant under an alternative theory of liability. If negligence were the standard for her “hostile environment” claim, I would find that Ellerth is entitled to reach a jury on this theory. Even if a company has a policy against sexual harassment, as Burlington did (though a skimpy one as these things go), it cannot put on blinders and pretend that corporate “knowledge” comes only through that channel. I do not understand the other members of this court to argue otherwise; a plaintiff is entitled to prove that the employer “knew or should have known” about the offensive conduct in any way that she can. Use of a policy is a particularly easy way to satisfy this burden, but it is not the only one. Ellerth complained to a number of Burlington employees about Slowik, including most notably Donna Thibideau, Burlington’s Customer Service Manager. Thibideau thought this may not have been the first time Slowik had behaved inappropriately. Ellerth is entitled to the opportunity to prove at trial that her informal communications were sufficient to put the company on notice of the problem.

For the reasons stated above, I would REVERSE the order of summary judgment and REMAND both No. 95-3128, Jansen v. Packaging Corp., and No. 96-1361, Ellerth v. Burlington Industries, for further proceedings.

. The opinions of Chief Judge Posner, Judge Flaum, Judge Easterbrook, added to mine, lead to this result in Jansen’s case. With respect to Ellerth's case, we must recall that the district court found that she had produced enough evidence to show a hostile environment; it rejected her claim on other grounds. Under this circuit's law, a district court’s finding of a hostile environment is reviewed under the clearly erroneous standard if the court correctly stated the applicable law. See Daniels v. Essex Group, Inc., 937 F.2d 1264, 1269-70 (7th Cir.1991). As I understand their opinions, both Chief Judge Posner and Judge Flaum do not think that the district court clearly erred on this point; rather, they have- concluded that Ellerth’s reference to the Restatement (Second) of Agency in this court amounted to a waiver of the right to present a negligence theory.

. Some of my colleagues have chosen to characterize my approach as one that de facto creates “strict liability” for employers whose supervisory employees engage in acts of sexual harassment. I do not wish to engage in a debate over labels. In keeping with the Supreme Court’s direction to "look to” agency principles in this area, I have outlined an approach that would impose respondeat superior liability in some instances and relieve the employer of such liability in others. This is not the "strict liability” that the Supreme Court rejected in Meritor, under which a plaintiff could hold an employer liable simply by proving the existence of the supervisory relationship.

. It is regrettable indeed, and a commentary on the difficulty victims of sexual harassment have faced in having their claims taken seriously, that sex discrimination taking the form of harassment has been singled out for this uniquely disadvantageous treatment.

. The majority of the Faragher court took a narrow approach to the question of scope of employment and ordered the dismissal of the plaintiffs' claims, while the dissents of Judge Barkett and Judge Anderson took an approach more in line with mine.

. Sparks' supervisor had called her into his office to ask if she was married and if she could become pregnant, subjected her to unwelcome touching, and told her things like "you’d better be nice to me,” and "your fate is in my hands.”

. Some nominal supervisors may have authority that is limited enough that little if any of their harassing acts would fall within the scope of their authority or be aided by their supervisory position. In those cases, which may correspond roughly to the classic "superior servant" agency concept, the court would apply a negligence rule to any act that was outside the scope of authority-

. Indeed, the implication of his criticism here is that liability will be defeated in too many cases, because plaintiffs will have a hard time proving that harassing acts fall within the scope of employment, while at the same time the opinion argues that the approach I advocate would create liability that is too sweeping. Our job is not to find a rule that produces the "right” number of plaintiffs' or defendants' verdicts, however; it ís to follow the law Congress has given us, interpreted as the Supreme Court has instructed. It is also worth recalling that any time the facts show that the supervisor has not acted within the scope of his employment, the plaintiff will still be free to try to prove employer negligence (which is the way most members of the court would treat "hostile environment” cases in any event).

. At this early stage of the litigation, it is immaterial that Jansen has not quantified the monetary damages she suffered; it is enough that she has shown the delay in receiving her raise and she has tied it to Antoni’s harassing behavior. There is no rule in Title VII that a claim in which damages are small or nominal must be dismissed.