concurring and dissenting:
I join in holding that Stoutz’s failure to take action against Bryan for his misconduct is sufficient to vacate the summary judgment. I would go further, however, and hold that the jury should be permitted to determine whether United States Steel is vicariously liable for Bryan’s acts that occurred before Bryan’s superior became aware of his misconduct.
I cannot accept the company’s analysis that because the acts of sexual harassment were motivated by personal desires, Bryan as a matter of law was not acting within the scope of his employment while harassing Davis. Under the company’s approach, Bryan’s supervision of Davis was constantly flitting in and out of the scope of his employment, depending on whether or not he was flirting with Davis or brushing against her at any particular time during the course of his supervisory duties.
*213South Carolina law holds an employer vicariously liable for the torts of its employees that are committed within the scope of their employment. If there is doubt “whether the servant in injuring a third person was acting at the time within the scope of his authority, the doubt will be resolved against the master at least to the extent of requiring the question to be submitted to the jury for determination.” Adams v. South Carolina Power Co., 200 S.C. 438, 441, 21 S.E.2d 17, 19 (1942).
In a federal court, the allocation of functions between the judge and the jury is governed by federal law. Wratchford v. S.J. Groves & Sons Co., 405 F.2d 1061, 1064-66 (4th Cir.1969). In this instance, I believe federal law would be identical to the sensible proposition stated by the South Carolina Supreme Court. Thus, the doubt about Davis’s claim that Bryan was acting within the scope of his authority when he harassed her, raises an issue that should be submitted to the jury. I would hold that where acts of harassment are pervasively intermingled with the performance of supervisory duties, the supervisor does not cease as a matter of law to be acting within the scope of his employment.
The evidence, viewed most favorably for Davis at this stage of the proceedings, discloses that United States Steel delegated to Bryan the authority to supervise Davis, and he did so in a tortious manner. The acts of harassment were interwoven with the performance of his duties as supervisor. Bryan’s supervision of Davis, albeit wrongfully executed, was in furtherance of United States Steel’s business.
Unfortunately, as cases and commentaries demonstrate, sexual harassment at the work place is foreseeable. Indeed, its occurrence is so well known that many employers, including United States Steel, have made rules forbidding it. “An act, although forbidden, or done in a forbidden manner, may be within the scope of employment.” Restatement (Second) of Agency § 230 (1957); accord Carroll v. Beard-Laney, Inc., 207 S.C. 339, 343, 35 S.E.2d 425, 426 (1945). Thus, a jury, not the judge, should determine whether United States Steel is vicariously liable for foreseeable acts of sexual harassment incident to Bryan’s discharge of his duties. See Restatement (Second) of Agency § 229 (1957).
Rabon v. Guardsmark, Inc., 571 F.2d 1277 (4th Cir.1978), on which the company relies, is readily distinguishable from this case. The rape in Rabón was not a pervasive feature of the security guard’s performance of his job. Rather, it was an isolated act that clearly negated the performance of the guard’s duties. By contrast, a jury could reasonably find that Bryan’s acts of sexual harassment were part and parcel of his supervision of Davis. For example, the jury could consider that his threat to fire Davis if she became pregnant during the busy season was an act incidental to his authorized duty to hire and fire a person in Davis’s position. In short, Bryan’s acts did not negate his duties in the way that the rape by the security guard negated the guard’s duties.
The jury should be permitted to determine whether United States Steel is vicariously liable for all of Bryan’s tortious conduct, not merely for wrongful acts that occurred after Bryan’s superior became aware of his misconduct in the performance of his duties. Consequently, I dissent from the limited relief granted Davis in this appeal.