Faragher v. City of Boca Raton

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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