case briefing assignment

Background Facts: Kimberly Ellerth, the respondent, was employed as a salesperson by Burlington. During her employment, she alleges that she was subjected to constant sexual harassment by a supervisor stationed in another office He constantly told her she wasn’t “loose enough,” and that if she didn’t, he could make her life very hard at the company. He also told her he wasn’t sure he wanted to give her a promotion because she wasn’t “loose enough.” These mentions of not being loose were accompanied by other offensive remarks and comments that could be construed as threats to deny her tangible job benefits. She quit the company without informing anyone of the conduct, but then filed suit after she had left the company alleging that Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII.

Procedural Information: The District Court granted summary judgment to Burlington. The Court of Appeals en banc reversed. Because there were eight different opinions in this decision, the Supreme Court granted certiorari.

Issue: Is an employer subject to vicarious liability when a supervisor creates a hostile work environment, accompanied by illicit threats on terms and conditions of the employee’s employment, based on sex, but does not fulfill the threat?

Decision: Yes, however the Court adopted a new approach to the analysis of such cases based on the concept of a tangible employment action and other considerations.

Reasoning: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate authority over the employee. The employer is, however, able to raise an affirmative defense if no tangible employment action was taken. If a tangible employment action is taken, no affirmative defense is available.

Concurrence or Dissent: None