PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-4878
D. C. Docket No. 92-8010-CIV-SH
BETH ANN FARAGHER, NANCY EWANCHEW,
Plaintiffs-Appellants-
Cross-Appellees,
versus
CITY OF BOCA RATON, a political subdivision
of the State of Florida,
Defendant-Appellee-
Cross-Appellant,
BILL TERRY, DAVID SILVERMAN,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Florida
(April 15, 1997)
(As Amended April 28, 1997)*
Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX,
BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges, DYER** and
KRAVITCH***, Senior Circuit Judges.
COX, Circuit Judge:
*Judge Barkett's dissent, in which Chief Judge Hatchett and
Senior Circuit Judge Kravitch join, is amended. All other opinions
remain the same.
**
Senior U.S. Circuit Judge Dyer elected to participate in
this decision pursuant to 28 U.S.C. § 46(c).
***
Senior U.S. Circuit Judge Kravitch was in regular active
service when this matter was originally submitted but has taken
senior status effective January 1, 1997. She elected to
participate in this decision pursuant to 28 U.S.C. § 46(c)(1996).
I. Facts1
Beth Ann Faragher worked as an ocean lifeguard for the City of
Boca Raton, Florida (City), in the Parks and Recreation
Department’s Marine Safety Section. The City employed Faragher
intermittently from September 1985 until June 1990. During these
five years, Bill Terry and David Silverman acted as supervisors of
the ocean lifeguards, Terry as Chief of the Marine Safety Section
and Silverman as a Marine Safety lieutenant and then captain.
Terry had the authority to supervise all aspects of the lifeguards’
work assignments; to give oral reprimands and place reports of
disciplinary actions in personnel files; and to interview and
select new lifeguards, subject to approval by higher management.
Silverman supervised the lifeguards’ daily duties, including
designating work assignments and supervising physical fitness
routines.
The Marine Safety Section was organized according to a clear
chain of command. Lifeguards reported to Marine Safety
lieutenants, and above them to captains; the captains reported
directly to the Chief of the Marine Safety Section, who was
directly supervised by the Recreation Superintendent; the
Recreation Superintendent reported to the Director of Parks and
Recreation, who reported to the City Manager. Lifeguards had
little contact with City officials. Marine Safety Headquarters was
at the beach -- in a remote location, far away from City Hall.
1
The facts are essentially drawn from the district court’s
Finding of Fact.
2
Marine Safety Chief Terry subjected Faragher and another
lifeguard, Nancy Ewanchew, to uninvited and offensive touching, and
lieutenant Silverman made offensive comments and gestures to both
Faragher and Ewanchew. In particular, Faragher testified that over
the course of her five years of employment Terry touched her
shoulders or waist on a number of occasions, patted her thigh once
in April 1990, and slapped her on the rear end. Ewanchew testified
about two specific incidents where Terry touched her in a sexually
offensive manner. However, neither Faragher nor Ewanchew
complained to Parks and Recreation Department management about
Terry’s and Silverman’s conduct while they were employed with the
City or when they resigned. They both did speak about Terry’s and
Silverman’s conduct with one of their supervisors, Marine Safety
lieutenant and Training Captain Robert Gordon. In fact, most of
the female lifeguards complained to Gordon about Silverman’s
language and conduct. The lifeguards did not speak with Gordon on
a subordinate to superior basis; they spoke with him as a friend
whom they held in high repute. Gordon did not report the
complaints to his supervisor, Terry, or to any other City official.
Ewanchew resigned from her position with the City in April of
1989, saying that she was leaving because she had found a better
job. Faragher resigned in June of 1990 to attend law school. In
April of 1990, Ewanchew wrote a letter to the City’s Director of
Personnel complaining that she and other female lifeguards had been
sexually harassed by Terry and Silverman while she was employed by
the City. The City did not know about Terry’s and Silverman’s
3
conduct until receiving Ewanchew’s letter. The City then
investigated Ewanchew’s complaint and determined that Terry and
Silverman had engaged in some inappropriate conduct. The City
reprimanded and disciplined them both.
II. Procedural Background
In 1992, Faragher sued the City, Terry, and Silverman.
Faragher sued the City for sexual harassment under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I).
Faragher sued Terry and Silverman for sexual harassment under 42
U.S.C. § 1983 (Counts II and III). Faragher also asserted pendent
state law claims, suing Terry for battery (Counts IV and V) and the
City for negligent retention and supervision of Terry (Counts VI
and VII). The district court held a non-jury trial on all claims.
The district court entered judgment for Faragher on her Title
VII claim against the City, awarding her $1 in nominal damages. 2
The court held that Terry’s and Silverman’s offensive conduct was
sufficiently severe and pervasive to alter the conditions of
Faragher’s employment by creating a hostile work environment. The
court held that the City was directly liable for Terry’s and
Silverman’s conduct under agency principles based on Terry’s and
Silverman’s supervisory authority and the overall workplace
2
The district court awarded Faragher $10,000 in compensatory
damages on her § 1983 claim against Terry and Silverman, jointly
and severally, and $500 in punitive damages on her battery claim
against Terry. Additionally, the district court entered judgment
for Ewanchew on her battery claim against Terry and awarded her
$35,000 in compensatory damages and $2,000 in punitive damages.
4
structure. In addition, the court held that the City was
indirectly liable for Terry’s and Silverman’s offensive conduct
because the conduct was severe and pervasive and supported “an
inference of knowledge, or constructive knowledge, on the part of
the City regarding Terry’s and Silverman’s sexual harassment.”
(R.6-166 at 23.)
Faragher appealed and the City cross appealed. A panel of
this court reversed the district court’s judgment for Faragher on
her Title VII sexual harassment claim against the City, but
affirmed the district court’s judgment in all other respects.
Faragher v. City of Boca Raton, 76 F.3d 1155 (11th Cir. 1996).
That panel opinion was vacated and rehearing en banc was granted.
Faragher v. City of Boca Raton, 83 F.3d 1346 (11th Cir. 1996).
III. Issues on Appeal
3
We address two issues in this opinion: First, whether the
City may be liable under Title VII for Terry’s and Silverman’s
hostile environment sexual harassment of Faragher, regardless of
its actual or constructive knowledge of that harassment; and
second, whether the City knew or should have known of Terry’s and
Silverman’s hostile environment harassment of Faragher.
3
The parties present additional issues that do not merit
further discussion. We affirm as to those issues. See 11th Cir.
R. 36-1.
5
IV. Standards of Review
We review the district court’s finding of fact under the
clearly erroneous standard of review. Pullman-Standard v. Swint,
456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789 (1982). We review the
district court’s conclusions of law and its application of law to
facts de novo. Massaro v. Mainlands Section 1 & 2 Civic Ass'n,
Inc., 3 F.3d 1472, 1475 (11th Cir. 1993), cert. denied, __ U.S. __,
115 S.Ct. 56 (1994).
V. Contentions of the Parties
Faragher contends that Terry’s and Silverman’s positions as
top lifeguard commanders make them prototypical agents of the City.
Faragher argues that this status, combined with Terry’s and
Silverman’s conduct, makes the City liable for hostile environment
sexual harassment. In addition, Faragher argues that the
harassment was so pervasive that the City should be charged with
constructive knowledge of Terry’s and Silverman’s conduct.
The City argues that it cannot be held liable under agency
principles for Terry’s and Silverman’s conduct because there is no
evidence which supports a finding either that Terry and Silverman
were acting within the scope of their authority in harassing
Faragher, or that they were aided in accomplishing the harassment
by the existence of their agency relationships with the City. The
City further contends that the evidence is insufficient to support
the trial court’s finding that the City had constructive notice of
Terry’s and Silverman’s conduct.
6
VI. Discussion
A. The City is not indirectly liable for Terry’s and
Silverman’s conduct.
This case requires us to accommodate the Supreme Court’s
mandate in Meritor Savings Bank v. Vinson that federal courts use
traditional agency principles when deciding hostile environment
sexual harassment cases, but simultaneously “place some limits on
the acts of employees for which employers under Title VII are to be
held responsible.” 477 U.S. 57, 72, 106 S.Ct. 2399, 2408 (1986).
Because the Eleventh and all other circuits employ agency
principles in the realm of hostile environment sexual harassment,
this opinion utilizes the language of traditional agency case law.
Under this approach, direct liability and indirect liability are
distinct concepts and form the only possible bases for an
employer’s liability. An employer is directly liable for hostile
environment sexual harassment if it knew, or upon reasonably
diligent inquiry should have known, of the harassment and failed to
take immediate and appropriate corrective action. See Steele v.
Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989);
Henson v. City of Dundee, 682 F.2d 897, 905.4 Under this theory of
direct liability, the City can be held liable for its own
negligence or recklessness, but not for the conduct of its
4
These cases refer to this type of liability as “indirect”
liability. However, as courts long have done outside the realm of
Title VII sexual harassment analyses, we are now marrying the
common law agency terms to their proper, traditional common law
principles. This alteration can promote ease of reference to the
underlying common law agency principles.
7
supervisors or employees.
In contrast, an employer is indirectly, or vicariously, liable
for the wrongful conduct of its agent, whether or not the employer
knew or should have known about the agent’s wrongful act.
Generally, an employer may be indirectly liable for hostile
environment sexual harassment by a superior: (1) if the harassment
occurs within the scope of the superior’s employment; (2) if the
employer assigns performance of a non-delegable duty to a
supervisor and an employee is injured because of the supervisor’s
failure to carry out that duty; or (3) if there is an agency
relationship which aids the supervisor’s ability or opportunity to
harass his subordinate. See Restatement (Second) of Agency §
219(1), (2)(c), (2)(d).
Subsequent to Meritor, the circuits differ on the appropriate
test to apply in a hostile work environment case involving sexual
harassment of an employee by the employer’s supervisor. See, e.g.,
Kauffman v. Allied Signal, 970 F.2d 178, 184 (6th Cir.
1992)(holding that the plaintiff must establish that a supervisor’s
harassment was within the scope of his employment and that the
employer failed to respond adequately and effectively when it
learned of the harassment); Paroline v. Unisys Corp., 879 F.2d 100,
104, 106-07 (4th Cir. 1989), vacated in part, 900 F.2d 27 (4th Cir.
1990)(holding that the proper inquiry is whether the individual
defendant served in a supervisory position in which he exercised
“significant control over the plaintiff’s hiring, firing or
conditions of employment;” and, if not, whether employer had actual
8
or constructive knowledge of the existence of a hostile work
environment and took no prompt and adequate remedial steps); Hicks
v. Gates Rubber Co., 833 F.2d 1406, 1418 (10th Cir. 1987)(holding
that employer liability could arise under the principles of
Restatement § 219(2) if: (1) the employer was negligent or
reckless; or (2) the employee relied on the supervisor’s apparent
authority; or (3) the supervisor was aided in his harassment by the
existence of the agency relationship); Andrews v. City of
Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990)(holding that the
plaintiff must prove that management level employees had actual or
constructive knowledge about the existence of a sexually hostile
environment and failed to take prompt and adequate remedial
action); and EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th
Cir. 1989)(holding that “employers are liable for failing to remedy
or prevent a hostile or offensive work environment of which
management-level employees knew, or in the exercise of reasonable
care should have known”).
This Circuit has concluded that in a pure hostile environment
case, a supervisor’s harassing conduct is typically outside the
scope of his employment. See Steele, 867 F.2d at 1311 (11th Cir.
1989); accord Andrade v. Mayfair Management, Inc., 88 F.3d 258, 261
(4th Cir. 1996)(holding that illegal sexual harassment is an
illegitimate corporate activity, beyond the scope of the
supervisor’s employment). We noted that:
Strict liability is illogical in a pure hostile
environment setting. In a hostile environment case, no
quid pro quo exists. The supervisor does not act as the
company; the supervisor acts outside “the scope of actual
9
or apparent authority to hire, fire, discipline, or
promote.”
Steele, 867 F.2d at 1316 (quoting Henson, 682 F.2d at 910). Thus,
as Meritor teaches, employers are not automatically liable for
hostile environment sexual harassment by their supervisors or
employees.
Instead, this circuit has articulated two agency principles
under which an employer may be held indirectly, 5 or vicariously,
liable for hostile environment sexual harassment: (1) 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));6 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(2)(d)). Faragher’s claim against the City fails on either
theory.
First, neither Terry nor Silverman were acting within the
scope of their employment when they perpetrated the harassment.
Under well-established common law agency rules, an agent is not
acting within the scope of his employment when he is “going on a
5
The cases that developed these theories of liability
referred to them as avenues for “direct” employer liability. For
the reasons stated in footnote 2, we use the label “indirect”
liability.
6
This scenario admittedly will be rare after Steele.
10
frolic of his own.” Joel v. Morrison, 6 C. & P. 501, 172 Eng.Rep.
1338 (1834)(first recorded use of this phrase); see also Spencer v.
Assurance Co. of America , 39 F.3d 1146, 1149 (11th Cir.
1994)(interpreting Florida law). In this scenario, the agent steps
outside of his employment to do some act for himself which is not
connected to his employer’s business. See William L. Prosser, § 70
Law of Torts at 461 (4th ed. 1982). If the agent has no intention
to perform any service for his employer, but instead seeks only to
further some personal end, then the act is not within the scope of
his employment. See, e.g., Bennett v. United States, 102 F.3d 486,
489 (11th Cir. 1996)(holding that victim of accidental shooting in
army barracks could not hold the United States liable under Georgia
respondeat superior principles because employee had undertaken an
act purely personal in nature and thus outside the scope of his
employment); Spencer, 39 F.3d at 1150 (holding that in order for an
employee’s conduct to be within the scope of his employment Florida
law requires that the conduct (1) must have been the kind for which
the employee was employed to perform; (2) must have occurred within
the time and space limits of his employment; and (3) must have been
activated at least in part by a purpose to serve the employment);
Restatement (Second) of Agency § 235; see also Restatement (Second)
of Agency § 236.7
7
The commentary to §§ 235 and 236 makes it clear that
scope-of-employment determinations must turn on whether the
employee’s act was intended to benefit the employer. This “intent”
can be discerned from circumstantial evidence which indicates that
the employee’s act, whether “part” of, or “incidental” to, the
employment was in some way authorized by the employer. See Comment
a, § 235, Comment a, § 236. Thus, “[i]f ... the servant does the
11
In contrast, if it becomes apparent that the act was the
agent’s way of accomplishing some authorized purpose, then the
master cannot avoid liability, even if he has given specific,
detailed and emphatic instructions to the contrary. See
Restatement (Second) of Agency § 230; Prosser, supra, at 461.
The contours of this same analysis have guided courts
adjudicating agency issues in intentional tort cases. Generally,
an employer is held liable for any intentional tort committed by an
agent where the purpose of the tort is wholly or in part to further
the employer’s business. Restatement (Second) of Agency § 245;
Prosser, supra, at 464. Once again, however, if the agent acts
from purely personal motives, he is usually considered to have
departed from his employment and his employer is not liable. Id.
at 465.
The harassment here consisted of offensive comments, gestures
and touching. However, the nature of Terry’s and Silverman’s acts
and comments towards Faragher does not support a finding that they
were acting within the scope of their employment in subjecting
Faragher to offensive language, gestures, and touching. Indeed,
there is no evidence that Terry and Silverman harassed Faragher in
order to perform any service for the City, or that they were either
explicitly or implicitly authorized by the City to engage in such
very act directed, or does the kind of act which he is authorized
to perform within working hours and at an authorized place, there
is an inference that he is acting within the scope of employment.”
Comment a, § 235. See also Bennett, 102 F.3d at 494 (noting that
Georgia scope-of-employment doctrine focuses on whether the
employee has acted to benefit his employer’s purpose.)
12
harassment. This case provides the archetypical example of
employees stepping outside of the scope of their employment and
seeking to further personal ends. Consequently, under this theory
of vicarious liability, the City cannot be liable for Terry’s and
Silverman’s harassing conduct.
Second, neither Terry nor Silverman were aided in
accomplishing the harassment by the existence of their agency
relationship with the City. See Sparks, 830 F.2d at 1559-60
(citing Restatement (Second) of Agency § 219(2)(d)). In one sense,
a supervisor is always aided in accomplishing hostile environment
sexual harassment by the existence of an agency relationship with
his employer because his responsibilities include close proximity
to and regular contact with the victim. Gary v. Long, 59 F.3d
1391, 1397 (D.C. Cir), cert. denied __ U.S. __, 116 S.Ct. 569
(1995). However, the common law rule does not use “aided” in such
a broad sense. Rather, the employer is liable only if the
harassment is accomplished by an instrumentality of the agency or
through conduct associated with the agency status. Id.8 In
8
Gary cites, as an example of this type of conduct,
Restatement (Second) of Agency § 219, comment e: “Thus a telegraph
company may be held liable for a tort committed by a telegraph
operator who sends a false telegraph message, as may the
undisclosed principal of a store whose manager cheats a customer.”
Gary, 59 F.3d at 1397. The point is that in such cases,
[l]iability is based upon the fact that the agent’s
position facilitates the consummation of the [tort], 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 the
business confided to him. See Restatement § 219, comment
e (citing § 261 in discussion of § 219(2)(d)).
13
Sparks, for example, the harasser used the authority delegated to
him by the company to assist in the harassment: He repeatedly
reminded the victim that he could fire her if she refused his
advances. Sparks, 830 F.2d at 1560; see also Steele, 867 F.2d at
1317 (limiting holding of Sparks to situations involving both quid
pro quo and hostile environment harassment).
No person threatened to fire or demote Faragher for refusing
to accommodate Terry’s and Silverman’s harassing overtures.
Moreover, the harassment cannot reasonably be viewed as conduct
associated with Terry’s and Silverman’s status as agents of the
City. See supra note 8. And, there is no evidence that either
Terry or Silverman made any employment decisions based upon
Faragher’s response to their sexual overtures. See Karibian v.
Columbia University, 14 F.3d 773, 780 (2nd Cir. 1994)(holding
employer liable for hostile environment sexual harassment where
supervisor capitalized upon his authority over plaintiff’s
employment to force plaintiff to endure prolonged, violent and
demeaning sexual relationship).
Because Terry and Silverman were not acting within the line
and scope of their employment in perpetrating the harassment
against Faragher, and because Terry and Silverman were not aided in
accomplishing the harassment by the existence of any agency
relationship with the City, the district court erred in holding the
City of Boca Raton vicariously liable for Terry’s and Silverman’s
harassment of Faragher.
14
B. The City is not directly liable for Terry’s and
Silverman’s harassing conduct.
The district court found that the City had no actual knowledge
of the sexual harassment but had constructive knowledge because of
the harassment’s pervasiveness. The question of constructive
knowledge is an issue of fact reviewed for clear error. Reich v.
Department of Conservation and Natural Resources, State of Ala., 28
F.3d 1076, 1082 (11th Cir. 1994).
The City contends that the district court’s finding that the
City had constructive notice of the harassment is clearly erroneous
and, therefore, that the City may not be held directly liable for
the harassment. Faragher responds that the district court’s
finding that the sexual harassment was severe and pervasive enough
to infer the City’s knowledge is not clearly erroneous.
An employer is directly liable for hostile work environment
sexual harassment if the employer knew or should have known of the
harassment and failed to take prompt remedial action. Steele, 867
F.2d at 1316; Henson, 682 F.2d at 905. A plaintiff can prove an
employer’s knowledge of harassment by showing she complained to
higher management. Huddleston v. Roger Dean Chevrolet, Inc., 845
F.2d 900, 904 (11th Cir. 1988). The district court found that
Faragher did not complain to higher management at the City. While
several lifeguards complained to lieutenant Gordon, the district
court found that he did not rank as higher management in the City
and, therefore, that notice to him should not be imputed to the
15
City.9
A plaintiff also can prove an employer’s knowledge by showing
that the harassment was pervasive enough to charge the employer
with constructive knowledge. Huddleston, 845 F.2d at 904; Henson,
682 F.2d at 905. The district court believed that its finding that
the conduct was sufficiently severe and pervasive to alter the
conditions of Faragher’s employment “supports an inference of
knowledge, or constructive knowledge, on the part of the City
regarding Terry’s and Silverman’s sexual harassment, making the
City [directly] liable for such conduct.” (R.6-166 at 23-24.)
According to the court, the pervasiveness analysis applicable to
finding that the work environment was abusive is the same as the
analysis required to show the employer’s knowledge.
We agree with the district court that the analyses are the
same to the extent that a court must evaluate the totality of the
circumstances both in determining whether the work environment was
abusive and in determining whether the conduct was pervasive enough
to put the employer on notice. But we do not agree with the
district court’s apparent belief that simply because conduct is
pervasive enough to create an abusive work environment the employer
should be charged with knowledge of the conduct. The question of
notice to the employer is distinct from the question of the
9
In its discussion of the City’s indirect liability for
Terry’s and Silverman’s conduct the court held that Gordon’s
knowledge of Terry’s and Silverman’s conduct provides a basis for
holding the City liable. This was error. Gordon did not receive
that information as the City’s agent; he received it as a friend
held in high repute by his colleagues.
16
environment’s abusiveness. Thus, the district court erred to the
extent that it conflated the two inquiries.10
There may be cases in which it is difficult to draw the line
where conduct becomes so pervasive that the employer should have
known about it. But this is not such a case. The district court
expressly found that the City had no knowledge of Terry’s and
Silverman’s conduct. The district court did not find, nor has
Faragher pointed to, any factual basis for concluding that the
harassment was so pervasive that the City should have known of
their conduct. The evidence suggests that just the opposite is
true. The lifeguards were stationed at a remote location and had
little contact with City officials. The harassment itself occurred
intermittently over a long period of time. Faragher worked for the
City mostly on a part-time and summer basis, and the district
court’s holding was premised upon a few, discrete instances of
harassment. Another lifeguard, Kelly Evans, was a friend of
Faragher’s, yet the two never discussed sexual harassment and there
is no evidence that Ms. Evans was otherwise aware of Terry’s and
Silverman’s harassing behavior towards Faragher. And, as part of
her duties as Recreation Superintendent, Sandy Dioli-Kumm
occasionally counseled some of the lifeguards. Ewanchew came to
see Dioli-Kumm to discuss work-related issues on several different
occasions but never mentioned anything about sexual harassment or
10
It does not follow in this case that because there was an
abusive environment the City necessarily had constructive knowledge
of Terry’s and Silverman’s harassment. However, there may be other
cases in which the same level of pervasiveness can support a
finding both of hostile environment and constructive notice.
17
offensive words or touching by Terry or Silverman; nor is there any
evidence that Dioli-Kumm was otherwise aware of such harassment.
Finally, the district court found that the confined space at
the lifeguard headquarters building, along with the
disproportionate ratio of female to male lifeguards, were in and of
themselves conducive to a sort of camaraderie that might be
considered “somewhat boisterous.” Despite this, however, Ewanchew
stated that the atmosphere in the locker room was generally
respectful among members of a particular shift.
For the above reasons, the district court clearly erred in
finding that the City’s knowledge may be inferred from the fact
that the conduct was pervasive enough to create an abusive work
environment.11 Thus, because there was no basis for imputing
knowledge of the harassment to the City, and the district court
having found that the City had no actual knowledge of the
harassment, we hold that the City is not directly liable for
Terry’s and Silverman’s harassment of Faragher.
VII. CONCLUSION
We reverse the district court’s judgment for Faragher on her
Title VII sexual harassment claim against the City. In all other
respects we affirm the district court’s judgment.
AFFIRMED in part; REVERSED in part.
11
There is some evidence that the City did not effectively
disseminate among Marine Safety employees its sexual harassment
policy. The district court did not find that the City would have
known about the harassment if it had effectively disseminated this
policy; and indeed, the record indicates that failure to
disseminate this policy was not the reason why the City did not
know about the harassment.
18
BARKETT, dissenting in part and concurring in part, in which
HATCHETT, Chief Judge and KRAVITCH, Senior Circuit Judge, joins:
The question posed in this case explores the circumstances
under which an employer can be liable for a supervisor-created
hostile environment of sexual harassment. I believe the majority
errs in concluding that the city is not liable under the
circumstances presented here and misapplies the law in doing so.
First, I believe that the majority fails to give appropriate
consideration to the responsibility of an employer for the acts of
its agents under traditional agency principles, and essentially
limits liability to only employers who “knew or should have known”
of the hostile environment. Second, even though the majority says
that an employer’s liability can be based on only constructive
knowledge, its analysis effectively requires actual knowledge “of
high city officials” - a test at odds with traditional principles
of “imputed” corporate knowledge.12
In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399
(1989), although the Supreme Court declined to extend strict
liability to hostile environment sexual harassment, it likewise
rejected rules which would insulate employers from liability absent
actual or constructive notice. Instead, it simply directed courts
to look to traditional agency principals to assess an employer’s
liability for hostile environment sexual harassment. Id. at 72-73,
12Additionally, the majority errs in engaging in de novo review
of the district court's factual findings relating to constructive
knowledge instead of reviewing for clear error.
19
106 S.Ct. at 2408.13 As does the majority, I will discuss these
agency concepts in turn.
“Direct Liability”14
The majority acknowledges employer liability for supervisor-
created hostile environment sexual harassment if the employer knew
or should have known of the harassment and failed to take prompt
remedial action. Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d
1503, 1512 (11th Cir. 1989). Under our case law, an inference of
13
Common law principles of agency are embodied in § 219 of
the Restatement (Second) of Agency (1958)[hereinafter
“Restatement”]. Section 219 establishes five different theories
for assigning liability to employers for the actions of their
employees:
(1) A master is subject to liability for the torts of his
servants committed while acting in the scope of their
employment.
(2) A master is not subject to liability for the torts of
his servants acting outside the scope of their employment,
unless:
(a) the master intended the conduct or the
consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the
master, or
(d) the servant purported to act or to speak on
behalf of the principal and there was reliance upon
apparent authority, or he was aided in accomplishing
the tort by the existence of the agency relation.
14
I am using “direct” liability in the same manner as the
majority. Under the Restatement, this theory arises under §
219(2)(b), which provides: “ (2) A master is not subject to
liability for the torts of his servants acting outside the scope
of their employment, unless: (b) the master was negligent or
reckless.” Employer negligence in this context is defined as
“failing to remedy or prevent a hostile or offensive work
environment of which management-level employees knew, or in the
exercise of reasonable care should have known.” Hirschfeld v. New
Mexico Corrections Dep't., 916 F.2d 572, 577 (10th Cir. 1990);
Kauffman v. Allied Signal, Inc., 970 F.2d 178, 185 (6th Cir.),
cert. denied, 113 S.Ct. 831 (1992).
20
constructive knowledge on the part of the employer can be supported
by a finding of pervasive harassment. Huddleston v. Roger Dean
Chevrolet, Inc., 845 F.2d 990, 904 (11th Cir. 1988) (explaining
that “[p]laintiff can show that the employer had knowledge by
“demonstrating that the harassment was so pervasive that an
inference of constructive knowledge arises”); Vance, 863 F.2d at
1512 (stating that a plaintiff “can prove that the employer knew of
the harassment by showing . . . that the harassment was pervasive
enough to charge the employer with constructive knowledge”).
After a non-jury trial, the district court in this case found
that Terry's and Silverman's conduct was “sufficiently severe or
pervasive” to constitute hostile environment sexual harassment.
The court then ruled that “[t]his finding of pervasiveness supports
an inference of knowledge, or constructive knowledge, on the part
of the City regarding Terry's and Silverman's sexual harassment .
. . .” The determination of constructive notice is based on factual
findings which this court will not overturn unless they are clearly
erroneous. See Reich v. Dep't of Conservation and Natural
Resources, 28 F.3d 1076, (11th Cir. 1994) (citing Lewis v. Federal
Prison Indus., Inc., 786 F.2d 1537, 1543-45 (11th Cir. 1986)
(reversing as clearly erroneous a district court's finding with
respect to whether management knew or should have known that
remedial action taken to eliminate age discrimination was
ineffective)); Vance, 863 F.2d at 1512 (referring to the issue of
constructive knowledge of sexual harassment as a “factual
determination”). Nonetheless, the majority essentially engages in
21
de novo review, substituting the trier of fact's assessment of the
record with its own. See Majority Op. at 16.
The majority also purports to find legal error: “...[S]imply
because conduct is pervasive enough to create an abusive work
environment an employer should [not] be charged with knowledge of
the conduct. The question of notice to the employer is distinct
from the question of the environment’s abusiveness. Thus the
district court erred to the extent that it conflated the two
inquiries.” Majority Op. at 16. However, there is no support in
either logic or the law for such a proposition. The majority can
cite to no case which holds that the same level of pervasiveness
cannot support the same finding of a hostile environment and
constructive notice. In fact, Vance states, “Just as the
determination of whether conduct is sufficiently 'severe and
pervasive' to constitute actionable harassment requires evaluation
of the totality of the circumstances, the fact finder [in
determining constructive knowledge] must examine the evidence in
the same manner. Again, the egregiousness, as well as the number of
the incidents, is plainly relevant.” Id. at 1513. Moreover,
the majority seems to collapse the two distinct inquiries of actual
knowledge and constructive knowledge into one, effectively
requiring actual knowledge before imposing liability. For example,
in rejecting the district court's finding of constructive notice
the majority notes that “the City had no knowledge” of Terry's and
Silverman’s conduct; that there was no “factual basis for
concluding that the City should have known of their conduct”; that
22
the lifeguards “were stationed at a remote location and had little
contact with City officials”; that Faragher never told her friend
who also was a lifeguard; and that the Recreation superintendent
was never told about the sexual harassment. Majority Op. at 16-17.
These factors inform an actual knowledge inquiry, not a
constructive knowledge inquiry.
For an employer to be charged with knowledge, it is clearly
not necessary for the head of the company, its president, or the
chairman of the board to have known of the harassment. Indeed,
generally the ultimate head or governing board does not have actual
knowledge of the action. The very point of ascribing knowledge on
a constructive basis is to recognize that liability can be imputed
even when the employer has not been “told,” i.e., even when there
is no actual knowledge. The relevant inquiry for constructive
knowledge is what the employer should have known in the exercise of
reasonable care. Hirschfeld v. New Mexico Corrections Dep't., 916
F.2d 572, 577 (10th Cir. 1990). Thus, an employer cannot insulate
itself from liability by abandoning its employees in a remote
location to be supervised by someone who makes their work lives
miserable by offensive touching and an atmosphere of sexually
offensive comments, suggestions and innuendo.
Terry was the Chief and supervisor of the lifeguard station at
which Faragher worked. He clearly had the notice necessary to
impute knowledge, and therefore liability, to the City. Under the
circumstances presented here, the district court, after hearing and
evaluating the evidence, correctly applied the law to the facts of
23
this case and did not commit clear error in finding that the
pervasiveness of the harassment supported an inference of
constructive notice on the part of the City.
“Indirect Liability ”15
I also think the majority errs in effectively confining
liability to instances where an employer has actual or constructive
knowledge. The very purpose of agency is to establish an employer's
liability specifically for acts of which it has no knowledge. As
Justice Joseph Story explains, a principal
is held liable to third persons in a civil suit for the
frauds, deceits, concealments, misrepresentations, torts,
negligences, and other malfeasances, or misfeasances, and
omissions of duty, of his agent, in the course of his
employment, although the principal did not authorize, or
justify, or participate in, or, indeed, know of such
misconduct, or even if he forbade the acts, or
disapproved of them.
Joseph Story, Commentaries on the Law of Agency § 452, at 536-37
(5th ed. 1857). This rule of holding a principal liable for the
acts of its agent is based on “the consideration that it is the
principal who makes it possible for the agent to inflict the
injury.” 3 Am. Jur. 2d Agency § 270 (1986). The record here
establishes that Terry and Silverman were agents of the City acting
16
within the scope of their employment and were aided in
15
I am using “indirect” liability in the same manner as the
majority, that is, according to the principles of agency found in
§§ 219-37 of the Restatement.
16
§ 219 (1) provides, “ A master is subject to liability
for the torts of his servants committed while acting in the scope
of their employment.”
24
accomplishing the harassment by the existence of an agency
relationship.17
The majority erroneously assumes that because employers
rarely, if ever, expressly authorize supervisors to act in a way
that would create a sexually hostile environment, harassment by a
supervisor would never fall “within the scope of his employment.”
The majority erroneously states that “[t]his Circuit has concluded
that in a pure hostile environment case, a supervisor’s harassing
conduct is typically outside the scope of his employment.”
Majority Op. at 9. However, the language from Steele v. Offshore
Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989) that the
majority cites in support of this proposition merely reiterates
Meritor’s rule against applying strict liability in hostile
environment harassment cases. To the extent that the majority
relies on cases from other circuits for the holding that harassment
constitutes behavior outside the scope of employment,18 such cases
serve as poor guides since they misconstrue the agency law to which
Meritor directs us. The Restatement clearly states that “an act,
although forbidden, or done in a forbidden manner, may be within
the scope of employment.” Restatement § 230. The proper inquiry in
17
§ 219(2)(d) provides, “A master is not subject to
liability for the torts of his servants acting outside the scope
of their employment, unless . . . the servant purported to act
or to speak on behalf of the principal and there was reliance
upon apparent authority, or he was aided in accomplishing the
tort by the existence of the agency relation.”
18
See e.g. Andrade v. Mayfair Manag., Inc., 88 F.3d 258,
261 (4th Cir. 1996) (stating that “illegal sexual harassment is
an illegitimate corporate activity, beyond the scope of
supervisors’ employment”).
25
determining if the agent's actions are “within the scope of
employment” is not whether the objectionable conduct was
authorized, but whether the conduct is of “the same general nature
as that authorized, or incidental to the conduct authorized.”
Restatement § 229. In making that determination, courts should
consider, among other things, when the action took place, where it
took place, whether it was foreseeable, the purpose of the action,
whether it served the principal, and the extent of the departure
from normal methods or results. Id.; see also, Yates v. AVCO
Corp., 819 F.2d 630 (6th Cir. 1987) (finding that supervisor acted
“within scope of employment” in harassing subordinate where
harassment took place at the office, during working hours and was
carried out by someone with the authority to hire, fire, promote
and discipline the plaintiffs); Kauffman v. Allied Signal, Inc.,
970 F.2d 178 (6th Cir.) (explaining that a relevant factor in
determining if supervisor was acting “within the scope of
employment” in harassing subordinate is whether the supervisor had
“significant input” into personnel decisions), cert. denied, 113
S.Ct. 831 (1992).
Indeed, I believe that hostile environment sexual harassment
is analogous to the Restatement’s well-known paradigm, which
explains that “a chauffeur, driving on an errand for his master,
who knowingly drives on the left-hand side of the street or exceeds
the speed limit, is still acting within the scope of employment.”
Restatement § 231 cmt. a. The act of speeding has not been
authorized by the employer, but the journey has clearly been
26
undertaken within the scope of the chauffeur’s employment.
Likewise, a pervasively hostile work environment of sexual
harassment is never (one would hope) authorized, but the supervisor
is clearly charged with maintaining a productive, safe work
environment. The supervisor directs and controls the conduct of
the employees, and the manner of doing so may inure to the
employer’s benefit or detriment, including subjecting the employer
to Title VII liability. In hostile environment sexual harassment
cases the supervisor, though not authorized to create a sexually
hostile environment, uses his authority “to call [the victim] into
his presence, to retain her in his presence over her objections, to
use his responsibility to act as the voice of the employer to place
her in a compromising position, and to take liberties with her
personal privacy beyond the reach of a co-equal acquaintance, or a
stranger.” See David Benjamin Oppenheimer, Exacerbating the
Exasperating: Title VII Liability of Employers for Sexual
Harassment Committed By Their Supervisors, 81 Cornell L. Rev. 66,
88 (1995) ; see also, Huddleston, 845 F.2d at 904 (employer liable
where supervisor required plaintiff to attend staff meetings where
she was harassed, and he physically touched her while berating her
for her job performance); Tomka v. The Seiler Corp., 66 F.2d 1295
(2d Cir. 1995) (employer liable where supervisor required plaintiff
to attend business dinner and encouraged alcohol consumption which
led to her rape by supervisor and other employees).
Moreover, “[a]n act may be within the scope of employment
although consciously criminal or tortious.” Restatement § 231;
27
see also, Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976) (employer
liable where delivery person raped a woman to whom he was
delivering furniture); Ira S. Bushy v. United States, 398 F.2d 167
(2d Cir. 1968) (government liable where drunken sailor’s
unauthorized acts caused ship to sink); Carr v. Wm. C. Crowell Co.,
171 P.2d 5 (Cal. 1946) (employer liable where carpenter hit another
employee in the head with a hammer); Samuels v. Southern Baptist
Hospital, 594 So.2d 571 (La. Ct. App. 1992) (hospital liable where
nurse’s assistant raped a patient).
Notwithstanding these well-established principles, the
majority writes that an act is not within the scope of employment
where “the agent has no intention to perform any service for his
employer, but instead seeks only to further some personal end.”
Majority Op. at 11. In support of this proposition, the majority
cites Bennett v. United States, 102 F.3d 486 (11th Cir. 1996) which
involved an off-duty soldier who accidentally shot a civilian with
a privately owned handgun while socially visiting another soldier
in the Army barracks. Id. at 487. This Court stated that the
soldier's activities on the evening of the shooting “were unrelated
to any employment relationship with the military, and were not
undertaken to further his employer's business.” Id. at 494. This
conclusion, however, rested on facts very different from those
before us. In Bennett, there was no dispute that the soldier was
off-duty, and was visiting the barracks “for purely personal
reasons unrelated to his responsibilities as a soldier,” which
failed “to bear even the faintest connection with his duties as an
28
employee of the United States Army.” Id. at 490. Terry's and
Silverman's harassment took place during work hours and at the work
place. Most importantly, the soldier inBennett was not performing
any act on behalf of his employer when the shooting occurred, nor
were his activities surrounding the shooting of “the same general
nature as” or “incidental to” any authorized conduct. In the case
before us, however, Terry and Silverman were charged with creating
and maintaining a productive, safe work environment, while
directing their employees in the performance of their duties. It
is while they were engaged in their responsibilities that the
harassment of Faragher occurred and, thus, was clearly “incidental
to” authorized conduct.
The majority's use of Spencer v. Assurance Co. of America, 39
F.2d 1146 (11th Cir. 1994), is also inapposite. In Spencer this
Court found that an employee, hired for road-paving, was not acting
within the scope of employment when he committed an intentional
battery while fighting “to protect his sister.” There was nothing
in the fight relating to the employee's work or the manner in which
he was instructed to perform it. Indeed, the Court specifically
recognized that
this case lacks a sufficient nexus between the employee's
job and his battery of another to raise even a jury
question as to the scope of employment issue.” Id. at
1149. The Court explicitly recognized that “under
special circumstances, an employee's intentional battery
of another may be said to have occurred within the
employee's scope of employment. See, e.g., Forster v.
Red Top Sedan Service, Inc., 257 So.2d 95 (Fla. 3d DCA
1972) (directed verdict in favor of employer reversed
where employee bus driver forced plaintiff's car off the
road and then assaulted and battered the car's occupants
29
after plaintiff allegedly delayed the employee from
performing his job-related duties); Columbia by the Sea,
Inc. v. Petty, 157 So.2d 190 (Fla. 2d DCA 1963) (jury
question created as to the scope of employment question
when maitre d' struck a customer after customer failed to
pay his bill and called maitre d' a “bastard”).
The majority also cites to Restatement §§ 235 and 236, arguing
that in order to hold the employer liable, the employee must have
intended to “serve the interests” of the employer. However, this
is too narrow a reading of these sections, as under those
provisions, an employer can also be held liable if there was an
intent “to perform it as a part of or incident to a service on
account of which he is employed.” Applying all of the foregoing
principles to the facts of this case, I believe the City of Boca
Raton is liable under § 219(1) for the hostile environment created
by Terry and Silverman.
Alternatively, I believe the City is liable in this case
under § 219(2)(d), which holds a principal liable for the acts of
an agent when the agent is aided in accomplishing the tort by the
existence of the agency relationship. See Restatement § 219(2)(d).
As with analysis under § 219(1), proper application of § 219(2)(d)
requires courts to closely scrutinize the power structure within
the workplace to determine the extent to which the particular
agency relationship has empowered the supervisor to use or abuse
his position to accomplish the harassment. See Vance, 863 F.2d at
1515 (degree of authority and overall structure of the workplace
are relevant to agency analysis); Sparks v. Pilot Freight Carriers,
Inc, 830 F.2d 1554, 1559 (11th Cir. 1987) (adopting E.E.O.C.
reasoning that employer’s delegation of authority empowered
30
supervisor to act). See generally, Oppenheimer, 81 Cornell L. Rev.
at 89.
The record reveals that both Terry and Silverman were granted
virtually unchecked authority over the work environment. In
Terry’s capacity as Marine Safety Chief, “[he] had the authority to
supervise all aspects of the lifeguards’ work assignments, to
conduct counseling and oral reprimands and place reports of such
disciplinary actions in the lifeguards’ personnel files.” Terry
also interviewed and selected new lifeguards, subject to approval
by higher management. Moreover, Terry held the highest management
position in the Marine Safety Section and on the City’s beaches.
Thus, he was ultimately responsible for the general beach
environment, including the public’s safety, and as such, it was
incumbent upon him to ensure optimal performance from the
lifeguards. Silverman, as Marine Safety lieutenant, and then
captain, supervised the “lifeguards’ daily duties, including
designation of the lifeguards’ work assignments and staffing of
shifts, and supervision of their physical fitness routines.”
With respect to the City’s involvement with the lifeguards,
the court found that “the lifeguards’ contacts with higher city
officials . . . were almost non-existent,” and the City admits
that, “Marine Safety headquarters was located at the City beach and
was thus physically remote from City Hall.” The lifeguards
operated under an extensive chain of command, with at least six
levels of management between the lifeguards and the City Manager.
Most importantly, although the City had a written sexual harassment
31
policy, that policy was never disseminated among Marine Safety
Section employees, and in fact, supervisors were never told or made
aware of the City’s sexual harassment policy. Indeed, the district
court explicitly found that any procedures that the City had in
place to deal with sexual harassment were ineffectual because of
the City’s failure to disseminate those procedures.
In sum, Faragher was completely isolated from the City’s
higher management, and Terry and Silverman directly controlled and
supervised all aspects of her day-to-day activities. Furthermore,
it is clear that the City had divested itself of all responsibility
for the social climate of the lifeguards’ work environment, that
Terry and Silverman essentially were given unfettered
responsibility for and control over that environment, and that the
lifeguards had no effective avenue of redress with the City. Thus,
under Vance, Terry and Silverman were acting with the requisite
amount of authority as agents to bind the City as principal. This
conclusion is supported by the fact that the acts of harassment
were undertaken during the time and at the place of work and were
“incidental to” the broad range of tasks the supervisors were
authorized to do, see Restatement § 229 (defining scope of
employment), as well as by the fact that Terry and Silverman were
aided in accomplishing these acts by the existence of the agency
relationship.
For the foregoing reasons, I would hold the City liable for
Terry’s and Silverman’s creation of a hostile work environment of
sexual harassment.
32
TJOFLAT, Circuit Judge, concurring in part and dissenting in part:
With the exception of appellant Beth Ann Faragher’s Title VII
claim, I concur in the court’s disposition of this case. As for
that claim, I cannot join the court's opinion because I agree with
the district court that Faragher’s proof demonstrated that the City
of Boca Raton violated Title VII by requiring her to work in a
hostile environment. The court accepts as not clearly erroneous
the district court’s finding that hostility in the form of abusive
sexual harassment was a condition of Faragher’s employment, but it
holds that the City is not liable under Title VII because the City
had no “actual knowledge” of the sexual harassment and “there was
19
no basis for imputing knowledge [of it] to the City.” Ante at 17.
I disagree. Faragher’s supervisor, Bill Terry, had knowledge of
the harassment because he perpetrated the harassment. The City
should be held liable for the sexual harassment Faragher
19
I am confused by the court’s use of the conjunction
“and.” To me, because the City is a corporation and must act
through its agents, actual knowledge must be imputed knowledge.
That is, information that an agent obtains in discharging his or
her duties is imputed by operation of law to the corporation,
thus giving the corporation actual knowledge of what the agent
learned. Hence, when referring to a corporation, imputed
knowledge is actual knowledge.
I am also confused by the court’s conclusion that the City
would be liable if it “knew or should have known” of the sexual
harassment in question. This implies that the City could be held
liable for simple negligence. A Title VII claimant, however,
must establish that the employer intended the harassment. I
believe that the court, in using this “knew or should have known”
language, means that if a trier of fact could conclude from the
evidence that the agent responsible for ensuring order in the
workplace (including the prevention of severe and pervasive
sexual harassment) knew that an employee was being subjected to a
hostile environment, that knowledge would constitute the
employer’s knowledge.
33
experienced because it placed Terry in charge of Faragher’s working
environment and gave him the responsibility of maintaining order in
the workplace.
I.
A.
Title VII of the Civil Rights Act of 1964, as amended,
provides that
[i]t shall be an unlawful employment practice for an employer-
-
(1) to fail or refuse to hire or discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2(a).
Title VII prohibits as a discriminatory condition of employment the
employer’s creation of an abusive working environment characterized
by severe and pervasive sexual harassment. Meritor Savings Bank v.
Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed. 2d 49
(1986). “A discriminatorily abusive work environment . . . can
and often will detract from employees’ job performance, discourage
employees from remaining on the job, or keep them from advancing in
their careers.” Harris v. Forklift Systems, 510 U.S. 17, 22, 114
S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993). “[D]iscriminatory
conduct . . . so severe or pervasive that it create[s] a work
environment abusive to employees because of their . . . gender . .
. offends Title VII’s broad rule of workplace equality.” Id., 114
34
S.Ct. at 371.
For obvious reasons, most employers strive to maintain order
in the workplace. Order enhances efficiency. For employers in the
private sector, order enhances the potential for profit. For
public employers, order enhances the image of officials who must
stand for re-election and bureaucrats who report to them and seek
job security. Disorder, the converse of order, prevents the
workplace from operating at optimal efficiency. Sexual harassment
that is severe and pervasive constitutes disorder. Hence,
employers have an extra-legal incentive to prevent it. Title VII,
because of the liability and associated costs it may impose,
provides employers with an added, legal incentive to prevent this
form of disorder.
There is always someone in charge of any workplace. Depending
on the character of the business or the number of employees in the
workplace, the designation of the person in charge may be explicit.
Alternatively, the designation may be tacit. Unless the employer
designates someone other than the person in charge of the workplace
as the one responsible for maintaining order, I would hold that the
person in charge of the workplace has the responsibility of
preventing severe and pervasive sexual harassment.20 I would hold
20
This approach is consistent with the Supreme Court's
directive in Meritor that, in determining which of the employer’s
agents or employees is responsible for preventing severe and
pervasive harassment from permeating the workplace, “courts
[must] look to agency principles for guidance,” although “such
common law principles may not be transferable in all their
particulars to Title VII.” 477 U.S. at 72, 106 S.Ct. at 2408.
Title VII, as interpreted in Meritor, requires employers to take
steps to ensure that sexual harassment does not permeate the
35
further that if the employer delegates to someone else the duty of
policing the workplace for sexual harassment, the employer must
make the designation unambiguously known to those laboring in the
workplace; otherwise the designation would have no legal, or
practical, effect.
B.
In the case at hand, the court does not dispute that Terry was
in charge of the workplace.
As Chief of the Marine Safety Section, “Terry had the authority to
supervise all aspects of the lifeguards' work assignments; to give
oral reprimands and place reports of disciplinary actions in
personnel files; and to interview and select new lifeguards,
subject to approval by higher management.” Ante at 2. The
district court found that the City “had a written sexual harassment
policy, [but failed] to disseminate said policy among Marine Safety
Section employees,” including Faragher. Faragher v. City of Boca
Raton, 864 F. Supp. 1552, 1560 (S.D. Fla. 1994). Because the City
neither communicated the policy to these employees nor identified
the person to whom complaints of sexual harassment were to be made,
the responsibility for implementing the policy in Faragher’s
workplace. To the extent that the application of common law
agency principles frustrates Title VII’s goal of eliminating such
harassment -- by effectively relieving the employer of the
responsibility of pursuing that goal -- those principles must
yield. The court, however, in reaching today’s decision, does
not appear to have considered this point.
36
workplace necessarily fell to Terry.21 Because he was aware that
Faragher was working in a sexually abusive environment and did
nothing to correct the situation, I would hold the City liable for
the injury she sustained.
II.
As noted above, the City had a policy against sexual
harassment in the workplace. The City, however, did not
communicate the policy to the employees of the Marine Safety
Section or identify the person to whom complaints of sexual
harassment were to be made. Thus, the City effectively concealed
from those employees the avenue for redress of grievances. This
concealment troubles me for three reasons. First, I fear that the
court’s opinion dilutes the employer’s duty under Title VII to
maintain a workplace free of severe and pervasive sexual
harassment. Second, the court’s opinion places an undue burden on
employees who wish to complain of harassment in the workplace.
Third, the court’s opinion has the potential to breed disrespect
for the law.
21
The court implies that someone in the Parks and
Recreation Department management was responsible for implementing
the City’s policy against sexual harassment by observing that
“neither Faragher nor [fellow lifeguard Nancy] Ewanchew
complained to Parks and Recreation Department management about”
the harassing conduct in question. Ante at 3. By suggesting
that Faragher had to find someone in the management of that
department with whom to lodge her complaint, the court ignores
the reality of Faragher’s workplace. The Parks and Recreation
Department management was located elsewhere and had little, if
any, contact with the Marine Safety Section’s employees, while
Terry was close at hand and was “in charge” of virtually every
aspect of Faragher's work environment.
37
A.
The court exonerates the City from liability because Faragher
did not complain to someone in the Parks and Recreation Department
management. The court does so even though Faragher had not been
told to whom she should complain. An employer reading the court’s
opinion may conclude that it, like the City of Boca Raton, can
escape Title VII liability by having a policy against sexual
harassment but concealing from its employees the identity of the
person to whom claims are to be made. Because such concealment
would have the potential for reducing claims of sexual harassment,
and thus the cost of doing business, an employer might choose to
follow the City’s footsteps. The employer’s other alternative, of
course, would be to identify the person to whom complaints are to
be made and to have an efficient mechanism for investigating them
and taking curative measures when necessary. No system is
perfect, however. Thus, an employer with a model system in place
cannot render itself immune from claims. In weighing the costs of
the two alternatives, an employer may opt for the course the City
took in this case. That course may yield more sexual harassment
but less liability, and thereby dilute the employer’s Title VII
duty.
B.
To the extent that the court’s opinion induces employers to
conceal the identity of the person to whom complaints of sexual
38
harassment are made, the opinion places an undue burden on
employees who suffer such harassment. Under my approach, if the
employee is not informed of the identity of the person to whom
complaints are to be made, the employee would simply turn to the
person in charge of the workplace. Under the court’s approach, the
employee must guess to which of the employer’s agents or employees
a complaint should be lodged. Depending on the circumstances, this
could be risky business. Among other things, the employee might
err in selecting the person to whom to complain, in which case her
22
complaint could go for naught. Faced with this uncertainty of
outcome, the employee might forego complaining and either suffer
the harassment or terminate her employment.
C.
The scenarios depicted in subparts A and B above, which I
submit are entirely plausible, will in time breed disrespect for
the law. Although I am sure that the court does not intend such
a result, I contend that the result is likely. For employers,
escaping Title VII liability for sexual harassment in the workplace
will be seen as a game -- a game to be played with cards dealt
from a deck composed of law of agency principles. The object of
22
Lodging a complaint imposes on the employee certain
costs, including embarrassment and disruption of working
relationships. Where the employee does not know to whom to
complain, it may be that she will complain to the wrong person
and that her complaint will not be addressed properly. Where the
employee faces the costs associated with lodging a complaint and
sees little likelihood that her complaint will yield any benefit,
the employee would probably not complain.
39
the game is to escape Title VII liability without affording
employees the protection that Title VII purports to provide. For
employees, Title VII will be seen as an empty promise -- a mere
sop, if you will -- enacted by Congress to placate a constituency
ANDERSON, Circuit Judge, concurring in part and dissenting in part:
With respect to Faragher's Title VII sexual harassment claim
against the City, I agree with Judge Barkett that the district
court should be affirmed. I agree with much of what is said in
Judge Barkett's opinion. I agree with Judge Barkett that the City
was appropriately found liable pursuant to the theory of "direct
liability." In addition to the facts pointed out by Judge Barkett
relating to the severity and pervasiveness of the conduct
constituting a hostile environment, I would rely upon the testimony
regarding the intermediate supervisor, Gordon. When plaintiffs
complained to him, he indicated that the City did not care. I
think this evidence of the City's lack of concern also supports the
district court's finding of constructive notice.
I also agree with Judge Barkett that the City could be liable
under a theory of "indirect liability," i.e., pursuant to the
agency principles upon which our previous hostile environment cases
have relied. I need not decide the threshold level of authority
which a supervisor must possess in order to impose liability on the
employer under these principles. For example, I need not decide
that every supervisor with some authority relating to personnel can
impose liability on the employer. It is sufficient for the
disposition of this case, in my judgment, that Terry was endowed by
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the City with sufficient authority to impose liability on the City.
The City placed Terry in charge of this particular workplace and in
charge of the plaintiffs and similarly situated employees. The
following facts support the conclusion that Terry was endowed with
"virtually unchecked authority over the work environment."23 The
City left Terry wholly unsupervised with respect to Terry's
management of the workplace including the setting of its
environment; the City gave Terry no effective instructions with
respect to its sexual harassment policy or any other policy related
to the work environment; and the City did not disseminate its
policy against sexual harassment to plaintiffs or similarly
situated employees. Having thus endowed Terry with complete
authority to set the workplace environment, I have no difficulty
concluding that Terry's conduct in determining the nature of the
work environment was within the scope of his authority, or at least
that he was aided in the actions he took by the agency
relationship.24
23 Judge Barkett at ____ (M/S at 10).
24 I need not decide whether the foregoing facts support agency
liability under the scope-of-employment prong or under the aided-
in-accomplishing-the-tort-by-the-agency-relationship prong or both.
As suggested by Judge Barkett's analysis, I suspect the analysis is
similar under either prong.
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