Filed: Feb. 08, 1996
Latest Update: Feb. 21, 2020
Summary: 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 (February 8, 1996) Before COX, Circuit Judge, DYER, Senior Circ
Summary: 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 (February 8, 1996) Before COX, Circuit Judge, DYER, Senior Circu..
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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
(February 8, 1996)
Before COX, Circuit Judge, DYER, Senior Circuit Judge, and
GOETTEL*, Senior District Judge.
COX, Circuit Judge:
*
Honorable Gerard L. Goettel, Senior U. S. District Judge for
the Southern District of New York, sitting by designation.
In this case we must decide several important questions
regarding hostile work environment sexual harassment under
Title VII.
I. FACTS1
Beth Ann Faragher and Nancy Ewanchew worked as ocean
lifeguards for defendant City of Boca Raton, Florida (the "City"),
in the Parks and Recreation Department's Marine Safety Section.
Only four to six of the forty to fifty lifeguards were female. The
Marine Safety Headquarters was a small, one-story building with
limited facilities, and all of the lifeguards shared the same
locker room and shower. The tight quarters and high male-female
ratio apparently led to a rambunctious atmosphere among the
lifeguards.
During the relevant time frame, defendants 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 had
supervisory authority over the lifeguards' daily duties, including
designating work assignments and supervising physical fitness
1
The facts are drawn from the district court's Findings of
Fact.
2
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
almost no contact with City officials such as the Recreation
Superintendent. Marine Safety Headquarters was in a remote
location, far away from City Hall.
Marine Safety Chief Terry subjected both Faragher and Ewanchew
to uninvited and offensive touching, and Ewanchew to offensive
language as well. For example, Terry would put his arm around
Faragher and rest his hand on her buttock. In a particularly
egregious example of Terry's touching, Terry pressed himself
against Ewanchew's buttocks and simulated sexual movement while the
two were at the water fountain. Other female lifeguards similarly
were subjected to Terry's uninvited and offensive touching and to
his demeaning and offensive comments.
Lieutenant Silverman made offensive comments and gestures to
both Faragher and Ewanchew. For example, in the presence of both
Faragher and Ewanchew, as well as other lifeguards, Silverman
engaged in a pantomime depicting cunnilingus. Examples of
Silverman's offensive comments include saying to Faragher, after
tackling her, "If you had tits I would do you in a minute," and to
3
Ewanchew, "There are a lot of tits on the beach today." Silverman
also made offensive remarks to other female lifeguards.
Neither Ewanchew nor Faragher 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. However, they both spoke 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 because they held him 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. At some time after her resignation, Ewanchew visited Terry
and requested re-employment on a part-time basis. She was not re-
employed. Faragher resigned in June of 1990 to attend law school.
Her decision to leave was unrelated to the alleged sexual
harassment. She did not discourage her sister from applying for a
lifeguard position with the City.
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 of Terry's and
Silverman's conduct until receiving Ewanchew's letter. The City
4
then investigated Ewanchew's complaint, determining that Terry and
Silverman had engaged in some inappropriate conduct. The City
reprimanded and disciplined them both.
II. PROCEDURAL BACKGROUND
In 1992, Faragher and Ewanchew 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 and Ewanchew each sued Terry and
Silverman for sexual harassment under 42 U.S.C. § 1983 (Counts II
and III). Faragher and Ewanchew also asserted pendent state law
claims. Faragher and Ewanchew each sued 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.
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
structure. In addition, the court held that the City was
indirectly liable for Terry's and Silverman's offensive conduct
because the court's finding that the conduct was severe and
5
pervasive "supports an inference of knowledge, or constructive
knowledge, on the part of the City regarding Terry's and
Silverman's sexual harassment."
The district court entered judgment for Faragher on her § 1983
claim against Terry and Silverman. Noting that the Eleventh
Circuit has not recognized a § 1983 cause of action for sexual
harassment, the court held that such a cause of action is
cognizable based on the weight of authority from other circuits. 2
The court found that Terry and Silverman acted under color of state
law based on their supervisory authority. The court found that
Faragher had proved her § 1983 claim by showing actionable sexual
harassment under Title VII and intent to harass based on membership
in a particular class, i.e., females. The court rejected Terry's
qualified immunity defense. The court awarded Faragher $10,000 in
compensatory damages against Terry and Silverman, jointly and
severally.
The district court entered judgment for Terry and Silverman on
Ewanchew's § 1983 claim. The court held that Ewanchew did not
prove her § 1983 claim because she failed to show actionable sexual
harassment under Title VII.3 Specifically, the court found that
2
Neither Terry nor Silverman contends on appeal that sexual
harassment is not cognizable under § 1983. We assume for purposes
of this appeal, but do not decide, that a sexual harassment claim
is cognizable under § 1983. The district court held that a sexual
harassment claim under § 1983 has two elements: (1) sexual
harassment, and (2) intent to harass based on membership in a
particular class. The court held that the harassment prong is
satisfied by showing actionable sexual harassment under Title VII.
3
As explained in note 2, the district court held that one
element of a § 1983 sexual harassment claim is showing harassment
6
Ewanchew's request for re-employment after resigning "makes it
illogical to find a perception of hostility in the work environment
on her part." In addition, the court found that Ewanchew's
testimony that Terry's and Silverman's conduct was intolerable at
the time was not credible. The court held that Ewanchew therefore
had not satisfied the requirement that an employee subjectively
perceive the work environment to be abusive. See Harris v.
Forklift Systems, Inc., 114 S. Ct. 367, 370 (1993).
The court entered judgment for Faragher on her battery claim
against Terry and for Ewanchew on her battery claim against Terry.
The court awarded Ewanchew $35,000 in compensatory damages and
$2,000 in punitive damages. Faragher was awarded $500 in punitive
damages.
The court entered judgment for the City on both Faragher's and
Ewanchew's negligent retention claims. The court held that its
finding that the City had constructive notice of Terry's and
Silverman's conduct for purposes of Title VII liability did not
mean that the City had constructive notice of Terry's conduct for
purposes of negligent retention liability. Applying to the City
the reasonable employer standard, the court found insufficient
proof that the City should have known of Terry's conduct before
Ewanchew's letter.
Faragher and Ewanchew appeal. The City cross-appeals.
III. ISSUES ON APPEAL
under Title VII.
7
The issues presented on appeal are: (1) whether, to recover
under Title VII for hostile environment sexual harassment, an
employee must subjectively perceive the work environment to be
abusive at the time that she is employed; (2) whether the district
court erred in relying on conduct of which Faragher was unaware in
determining that Terry's and Silverman's conduct was sufficiently
severe or pervasive to alter the conditions of her employment in
violation of Title VII; (3) whether the district court erred in
finding that Faragher was subjected to an abusive work environment
and perceived the environment to be abusive; (4) whether, under
Title VII, the City may be directly liable for Terry's and
Silverman's hostile environment harassment of Faragher, regardless
of its actual or constructive knowledge of that harassment; (5)
whether, under Title VII, the district court erred in finding that
the City had constructive knowledge of Terry's and Silverman's
conduct based on its pervasiveness; and (6) whether, under Florida
law, the district court erred in finding that the City had no
constructive knowledge of Terry's unfitness for purposes of the
negligent retention claims.
We are not presented with any challenge to the district
court's judgment for Faragher on her § 1983 claim against Terry and
Silverman. Nor are we presented with a challenge to the district
court's judgment for Faragher and Ewanchew on their battery claims
against Terry.
IV. STANDARDS OF REVIEW
8
We review the district court's findings 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). The question of
actual or 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). 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
Assn., Inc.,
3 F.3d 1472, 1475 (11th Cir. 1993), cert. denied, __
U.S. __ ,
115 S. Ct. 56 (1994).
V. DISCUSSION
A. Ewanchew's Subjective Perception That Work Environment Was
Abusive Under Harris.
Ewanchew contends that the district court erred in holding
that she did not satisfy the subjective prong of the hostile
environment test in Harris v. Forklift Systems , 114 S. Ct. 367
(1993). Under Harris, Title VII is not violated unless the victim
of harassment subjectively perceives the work environment to be
abusive, because otherwise the harassment has not altered the
conditions of the victim's employment.
Harris, 114 S. Ct. at 370.
The district court found that Ewanchew did not perceive her work
environment to be abusive because her testimony to that effect was
not credible and because she asked Terry to re-employ her at some
time after she resigned.
Ewanchew approaches the district court's holding that she did
not satisfy Harris from two different angles. First, she argues
9
that the district court's factual finding that she did not perceive
her work environment to be abusive is inconsistent with its finding
that she suffered $35,000 in damages on her battery claim.
According to Ewanchew, the $35,000 damages finding is correct and
leads ineluctably to the conclusion that she perceived her work
environment to be abusive. Ewanchew's second tack is to contend
that the district court erroneously engrafted onto Harris's
subjective prong a requirement for present-sense revulsion.
Harris's subjective prong is satisfied, she argues, by after-the-
fact realization of the offensiveness of the perpetrator's conduct.
Terry responds to both of Ewanchew's arguments by contending that
the district court's finding is not clearly erroneous.
Ewanchew has not demonstrated that the district court's
factual findings are inconsistent. On Ewanchew's battery claim,
the court found that Terry's offensive touching caused Ewanchew
$35,000 in damages for psychological or emotional injury. A
finding of damages resulting from an offensive touching--even if
the touching, when combined with other conduct, constitutes sexual
harassment--does not necessarily mean that the victim of the
touching perceived her work environment to be abusive. Although
the district court makes no specific finding as to when Ewanchew
suffered damages, Ewanchew's damages from the battery seem to have
occurred some time after she resigned from her lifeguard position
with the City. In Ewanchew's Reply Brief and at oral argument,
Ewanchew's counsel conceded that Ewanchew suffered a delayed
reaction to the offensive conduct, but argued that Ewanchew's
10
delayed reaction satisfies Harris. Notably, Ewanchew has pointed
to no evidence in the record indicating that she suffered damages
from the battery before she resigned.
Under this view of the battery damages award, the district
court's findings are not inconsistent. The district court
reasonably could have found that Ewanchew did not view her work
environment as abusive but, after resigning, suffered emotional or
psychological trauma from the offensive touchings. Thus, it is not
inconsistent, under this view of the facts, to award damages on
Ewanchew's battery claim while finding that Ewanchew did not
satisfy Harris, at least as the district court read Harris.
Nor is the district court's finding that Ewanchew did not
perceive her work environment to be abusive clearly erroneous. The
district court found "not credible [Ewanchew's] present assertion
that she found [Terry's and Silverman's] conduct intolerable,
then." Furthermore, the court found that Ewanchew "appears to have
tolerated such conduct not because she felt she had to but because
it wasn't that important to her." In addition to these findings
based on the credibility of Ewanchew's testimony, the court
determined that it would be illogical to find a perception of
hostility on Ewanchew's part in light of her request for a part-
time job after she left the City's employ.
Ewanchew contends that, even if she did not perceive her work
environment to be abusive at the time, she satisfied Harris's
subjective prong so long as she felt offended or abused after the
fact. The parties have not pointed us to any federal case
11
addressing after-the-fact perceptions of abuse under Harris.4
According to Ewanchew, the subjective prong's raison d'etre is
satisfied by after-the-fact realization of the offensiveness of the
perpetrator's conduct. The subjective prong, she argues, ensures
that the alleged conduct injured this particular plaintiff. We
cannot agree that this is the subjective prong's only purpose.
Harris's subjective prong ensures that the alleged conduct
altered the conditions of the plaintiff's employment. See Harris,
114 S. Ct. at 370. Otherwise, Title VII is not implicated. Title
VII makes it unlawful "to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's ... sex." 42 U.S.C.
§ 2000e-2(a)(1). Sexual harassment constitutes discrimination
based on sex but is actionable under Title VII only if it alters
the terms or conditions of the victim's employment. Meritor
Savings Bank v. Vinson,
477 U.S. 57, 67,
106 S. Ct. 2399, 2405
(1986). Hence Harris's subjective prong: "if the victim does not
subjectively perceive the environment to be abusive, the conduct
has not actually altered the conditions of the victim's employment,
and there is no Title VII violation."
Harris, 114 S. Ct. at 370.
Under Harris, then, Title VII is not violated when the victim
of harassment does not perceive her work environment to be abusive
at the time that she is employed. But cf. Kimzey v. Wal-Mart
4
Ewanchew cites two cases from other circuits interpreting
Harris's subjective prong but neither addresses after-the-fact
perceptions of abuse. See Dey v. Colt Construction & Development
Co., 28 F.3d 1446 (7th Cir. 1994); King v. Hillen,
21 F.3d 1572
(Fed. Cir. 1994).
12
Stores, Inc., -- F.Supp. --, 1995 WL 691953 (W.D. Mo. 1995)
(interpreting Harris as not requiring well-defined, subjective
belief of hostility at exact moment an incident occurs). An
employee's conditions of employment are not affected by what
happens after she resigns. After-the-fact realization of the
offensiveness of conduct thus does not satisfy Harris; it is
irrelevant to whether the employee's conditions of employment were
altered. Thus, contrary to Ewanchew's contention, the district
court did not err in requiring Ewanchew to prove that she perceived
her work environment to be abusive during the term of her
employment. Because she did not perceive her environment to be
abusive, Terry's and Silverman's conduct did not alter the
conditions of her employment and, therefore, she cannot recover for
their conduct under Title VII.
B. Whether Terry's and Silverman's Conduct Was Sufficiently
Severe and Pervasive To Alter Faragher's Conditions of
Employment.
On its cross-appeal, the City contends that the district court
erred in relying on conduct of which Faragher was unaware in
determining that Terry's and Silverman's conduct was so pervasive
and severe as to alter Faragher's conditions of employment.
Faragher does not contend that the district court properly relied
on conduct of which Faragher was unaware.
The district court's opinion is somewhat ambiguous as to this
issue, but parts of the opinion make it at least arguable that the
district court relied on conduct of which Faragher was unaware in
13
determining that Terry's and Silverman's conduct was so pervasive
and severe as to alter Faragher's conditions of employment. The
district court erred to the extent that, in making this
determination, it relied on conduct of which Faragher was unaware.
See Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th
Cir. 1995); see also Hirase-Doi v. U.S. West Communications, Inc.,
61 F.3d 777, 782 (10th Cir. 1995). In a case of hostile
environment sexual harassment, an employee's conditions of
employment cannot be altered by conduct of which she is unaware.
Moreover, conduct of which an employee is unaware cannot contribute
to her subjective view of the work environment as hostile.
Edwards, 49 F.3d at 1522;
Hirase-Doi, 61 F.3d at 782.5
The City argues that, if the district court had considered
only conduct of which Faragher was aware, it could not have found
that Faragher was subjected to an abusive work environment. The
City further contends that the district court erred in finding that
Faragher subjectively perceived her work environment as hostile or
abusive in light of her apparent nonchalance toward her
environment, her failure to complain, and her failure to caution
her sister about applying for a job as a lifeguard with the City.
Faragher responds that the evidence supports the district court's
findings that Terry's and Silverman's conduct, as known to
Faragher, was sufficiently severe and pervasive to create an
abusive work environment, and that Faragher subjectively perceived
5
Of course, evidence of harassment of which Faragher was
unaware may be relevant to the extent that it corroborates her
allegations.
14
her environment as abusive.
If, as the City argues, the district court indeed relied on
conduct of which Faragher was unaware in determining that her work
environment was abusive, the extent of the court's reliance on that
conduct is unclear. However, that question need not detain us. We
have no doubt that the district court would have found that
Faragher's work environment was abusive, both objectively and
subjectively, based solely on the conduct of which Faragher was
aware. Indeed, the record suggests that it might have been clear
error for the district court, having credited Faragher's testimony,
to find otherwise.
In determining whether a work environment is abusive or
hostile, the totality of the circumstances must be considered.
Relevant circumstances include: "the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance." Harris, 114 S. Ct. at 371. Our review of the record
reveals that Faragher was subjected to frequent and severe
discriminatory conduct by Terry and Silverman. While some of the
conduct might be characterized as "mere offensive utterance," other
conduct was physically threatening (for example, being tackled by
Silverman) and humiliating (for example, Silverman's comments about
Faragher's body, the terms he used to describe women, and his
pantomime of oral sex). We need not catalogue all of the conduct
to which Faragher was subjected, for we have no trouble concluding
15
that Terry's and Silverman's conduct, as known to Faragher, was
severe and pervasive enough to create an objectively abusive work
environment.
We also conclude that the district court's finding that
Faragher subjectively perceived her work environment to be abusive
is not clearly erroneous. The district court based its finding
largely on the credibility of Faragher's testimony. The court
considered Faragher's failure to complain or to caution her sister
about applying for a lifeguard position, but concluded that other
factors explained her actions. We cannot say that the district
court clearly erred in its resolution of this issue.
C. Direct Liability of City for Hostile Environment Sexual
Harassment.
The City also contends on its cross-appeal that the district
court erred as a matter of law in holding the City directly liable
for Terry's and Silverman's conduct under Title VII, without regard
to whether the City had actual or constructive knowledge of the
conduct. Citing Steele v. Offshore Shipbuilding, Inc. , 867 F.2d
1311 (11th Cir. 1989), the City argues that it may be liable under
Title VII for hostile environment sexual harassment only indirectly
through respondeat superior; that is, only if it knew or should
have known of the sexual harassment and failed to take prompt
remedial action. Faragher concedes that, underSteele, the City is
not directly liable for Terry's and Silverman's conduct.
This is a pure hostile environment case. The district court
acknowledged our admonition in Steele that holding employers
16
strictly liable for a supervisor's sexual harassment is illogical
in a pure hostile environment setting. The court expressly found
that the City had no actual knowledge of Terry's and Silverman's
sexual harassment before receipt of Ewanchew's letter.
Nevertheless, relying on our decisions in Huddleston and Vance, the
court held the City directly liable for Terry's and Silverman's
conduct because it found that they were the City's agents. See
Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1512 (11th
Cir. 1989), overruled on other grounds, Patterson v. McLean Credit
Union,
491 U.S. 164,
109 S. Ct. 2363 (1989); Huddleston v. Roger
Dean Chevrolet, Inc.,
845 F.2d 900, 904 (11th Cir. 1988). It held
that Faragher need not show either actual or constructive notice to
the City, notwithstanding our statement in Steele that corporate
liability exists in a pure hostile environment case only if the
employer knew or should have known of the harassment.
Steele, 867
F.2d at 1316.
The Supreme Court has declined to issue a definitive rule as
to when a corporate defendant is liable for hostile environment
sexual harassment under Title VII. Meritor, 477 U.S. at 72, 106
S.Ct. at 2408. From Congress's decision to define "employer" under
Title VII to include the employer's agents, 42 U.S.C. § 2000e(b),
however, the Court inferred that Congress intended for courts to
look to common law agency principles in Title VII sexual harassment
cases.
Meritor, 477 U.S. at 72, 106 S.Ct. at 2408. This circuit
has applied agency principles to the issue of corporate liability
for sexual harassment on numerous occasions, including in Steele,
17
Vance, and Huddleston.
Our cases establish the following rules. An employer is
directly liable for sexual harassment when the harasser is acting
as the employer's agent. Steele, 867 F.2d at 1316 n.1;
Vance, 863
F.2d at 1512;
Huddleston, 830 F.2d at 904; Sparks v. Pilot Freight
Carriers, Inc.,
830 F.2d 1554, 1558 (11th Cir. 1987). Thus, an
employer is directly liable for sexual harassment by a supervisor
or other employee acting within the scope of his employment. See
Sparks, 830 F.2d at 1558 (citing Restatement (Second) of Agency
§ 219(1)). An employer also is directly liable, under agency
principles, for sexual harassment by a supervisor or other employee
acting outside the scope of his employment if the supervisor or
employee was aided in accomplishing the harassment by the existence
of the agency relationship.
Id. at 1559-60 (citing Restatement
(Second) of Agency § 219(2)(d)).6
Applying these agency principles, we have held that an
employer is strictly liable for quid pro quo sexual harassment.
Henson v. City of Dundee, 682 F.2d 897, 909-910 (11th Cir. 1982).
As we explained in Steele, a supervisor by definition acts as the
company when engaging in quid pro quo harassment.
Steele, 867 F.2d
at 1316. The supervisor acts within the scope of his actual or
apparent authority to hire, fire, discipline, or promote.
Moreover, the supervisor uses the means furnished to him by the
6
Accord Gary v. Long, 59 F.3d 1391, 1397 (D.C. Cir.), cert.
denied
116 S. Ct. 569 (1995); Hirase-Doi,
61 F.3d 777, 783 (10th
Cir. 1995); Karibian v. Columbia University,
14 F.3d 773, 780 (2nd
Cir.), cert. denied
114 S. Ct. 2693 (1994); Bouton v. BMW of North
America,
29 F.3d 103, 106 (3rd Cir. 1994).
18
company to accomplish the harassment when using his apparent or
actual authority to extort sexual consideration from the victim.
Id. (quoting Henson, 682 F.2d at 910).
Whereas an employer is always directly liable for quid pro quo
harassment, an employer rarely will be directly liable for hostile
environment harassment; rather, liability will be indirect.7
Viewed under agency principles, these seemingly disparate results
make sense. A supervisor or other employee typically does not act
as the company when he subjects an employee to a hostile work
environment. Hence the distinction between liability for quid pro
quo harassment and liability for hostile environment harassment:
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
or apparent authority to hire, fire, discipline, or
promote." Corporate liability, therefore, exists only
through respondeat superior; liability exists only where
the corporate defendant knew or should have known of the
harassment and failed to take prompt remedial action
against the supervisor.
Id.
With respect to employer liability for pure hostile
environment harassment, Steele and Vance appear to conflict.8
Steele precludes direct employer liability in a pure hostile
environment case, allowing only indirect liability if the employer
knew or should have known of the harassment and failed to take
7
We discuss indirect employer liability in section V.D.
8
Steele and Vance, decisions issued almost contemporaneously,
were the first cases in which we addressed the standard for
employer liability for pure hostile environment harassment. See
Steele, 867 F.2d at 1317;
Vance, 863 F.2d at 1515.
19
prompt remedial action. Id. Vance, on the other hand, allows
direct employer liability in a hostile environment case if the
harasser acted as the employer's agent.
Vance, 863 F.2d at 1514-
15.
The district court correctly reconciled this precedent in
holding that an employer may be liable in a hostile environment
case if either (1) the employer knew or should have known of the
harassment and failed to take prompt remedial action, or (2) the
harasser acted as the employer's agent. However, as we explain
below, only in an exceptional case will a harasser act as the
employer's agent in creating a hostile work environment. This is
not such a case. The district court erred in holding that Terry
and Silverman acted as the City's agents in harassing Faragher.
The district court found that Terry and Silverman were the
City's agents based on their supervisory authority and the overall
structure of the workplace. We agree that Terry and Silverman were
the City's agents for some purposes. But the relevant inquiry is
whether they were acting as the City's agents in subjecting
Faragher to a hostile work environment. See Sparks, 830 F.2d at
1558-59 (analyzing not whether the harasser was an agent generally
but whether harasser acted as an agent when he harassed victim).
Faragher does not contend that Terry and Silverman were acting
within the scope of their employment when they made offensive
remarks and gestures and touched her. And we have found no record
evidence suggesting that they were acting within the scope of their
20
employment when they harassed Faragher.9
The district court relied on Vance in finding that Terry and
Silverman were the City's agents for direct liability purposes.
Plaintiff in Vance sued her employer for racial discrimination
under 42 U.S.C. § 1981; the legal elements of a harassment claim
under § 1981 were the same as they are under Title VII. Vance, 863
F.2d at 1509 n.3. She alleged, inter alia, that she was subjected
to a hostile work environment and discriminatorily disciplined
because of her race.
Id. at 1511. The district court correctly
instructed the jury that the employer was liable if a supervisor
acting within the scope of his employment, as an agent of the
employer, harassed plaintiff.
Id. at 1514 n.10. The jury returned
a verdict for plaintiff, but the district court granted the
employer's motion for judgment notwithstanding the verdict. The
district court held, inter alia, that the employer could not be
held liable because it had adequate grievance procedures and
plaintiff had failed to give the employer notice of the harassment.
Id. at 1512. We reversed, holding that the employer's grievance
procedures did not, as a matter of law, insulate it from liability.
9
This case is thus distinguishable from Huddleston, on which
the district court relied in part in holding the City directly
liable. In Huddleston, the harasser berated the victim for her job
performance in the course of creating a hostile work environment.
Huddleston, 845 F.2d at 904. Thus, the harasser acted within his
supervisory authority to hire, fire, discipline, or promote. See
Steele, 867 F.2d at 1317 n.2. Here, however, there is no evidence
that Terry or Silverman acted within their supervisory authority in
creating a hostile work environment. Significantly, inHuddleston,
the harasser's conduct constituted quid pro quo harassment as well
as hostile environment harassment. See
id. Thus, by definition
the harasser acted as the company. Here, though, only hostile
environment sexual harassment is alleged.
21
Id. at 1514.
We also held that an employer may be directly liable for the
existence of a hostile work environment. Id. at 1514-15.10 Because
plaintiff in Vance alleged that her supervisor was an agent of the
employer for direct employer liability purposes, we examined
whether the evidence was sufficient for the jury to find the
employer directly liable through its agent, plaintiff's
supervisor.11
Id. We held that a reasonable jury could conclude
from the evidence that the supervisor was acting as the employer's
agent in creating the hostile work environment.
Id. at 1515.
In so holding, we listed several factors relevant to whether
a harasser is acting as the employer's agent in creating a hostile
work environment: the supervisor's direct authority over the
plaintiff, the overall structure of the workplace, and the relative
positions of the parties. Id. The district court examined these
same factors in this case in determining that Terry and Silverman
were the City's agents. However, further scrutiny ofVance reveals
that, while those factors were directly relevant to the allegations
in Vance, they are not dispositive here.
10
We cited Huddleston for the rule that when the harasser acts
as an agent of the employer, the harasser is the employer for
purposes of Title VII, and thus the corporate employer is directly
liable. Id. at 1514. As explained in note 9, the conduct in
Huddleston constituted both hostile environment and quid pro quo
harassment.
11
Though we focused in our opinion on whether the jury could
find that plaintiff's first supervisor, Wagner, acted as the
employer's agent, the evidence also showed that other supervisors
acted as the employer's agents in discriminatorily disciplining
plaintiff. See id. at 1507-08, 1511.
22
In Vance, we based our agency analysis largely on the agency
analysis in Hamilton v. Rogers, 791 F.2d 439 (5th Cir. 1986). See
Vance, 863 F.2d at 1515. In Hamilton, the Fifth Circuit held that
two intermediate level supervisors were agents of the fire
department under Title VII because "[t]hey had authority over
matters such as car assignments and the staffing of shifts, and
they wielded this authority to Hamilton's detriment. Even more
important, they filed the critical reports that led to Hamilton's
1982 suspension."
Hamilton, 791 F.2d at 442 (emphasis added). The
supervisors had denied Hamilton a car assignment, scheduled him for
the night shift, and given him poor evaluations, all for racially
discriminatory reasons.
Id. Thus, the supervisors' authority over
Hamilton and the structure of the workplace showed that the
supervisors were acting within the scope of their employment in
violating Title VII.12
Similarly, in Vance, plaintiff had presented evidence from
which the properly instructed jury could infer that the supervisor
was acting within the scope of his employment when he created the
hostile work environment. The evidence suggested that the
supervisor had hung a noose over plaintiff's work station. Vance,
863 F.2d at 1506. The supervisor testified that he had constructed
12
Hamilton involved allegations of discrimination in addition
to just the creation of a hostile work environment. The Fifth
Circuit seems to have predicated the employer's liability on
conduct of the supervisors that did not form part of the hostile
environment allegations. See id. Thus, it is not at all clear
that the supervisors' authority and the overall structure of the
workplace were relevant to the fire department's liability for the
hostile work environment.
23
a device which looked like a noose, but explained "that it had been
designed to desheathe cable to increase productivity." Id. We
held that a jury could conclude from this evidence that the
supervisor acted as the employer's agent in creating the hostile
environment.
Id. at 1515. Viewed in light of Hamilton, it is
evident that Vance's focus on the supervisor's authority (to
discipline employees, handle union grievance proceedings, and make
personnel changes) and the overall structure of the workplace was
aimed at determining whether the supervisor was acting within the
scope of his employment when constructing the device ostensibly
designed to increase productivity.13
Here, the district court mechanically applied the factors
listed in Vance without determining their relevance to whether
Terry and Silverman were acting within the scope of their
employment in harassing Faragher. The harassment here consisted of
offensive comments, gestures, and touching. If, for example, as in
Vance, Terry and Silverman had constructed something offensive and
intimidating to women under the guise of trying to improve
lifeguard performance, then their supervisory and disciplinary
authority would support a finding that they acted as the City's
agents in violating Title VII. But Terry's and Silverman's
13
Plaintiff's claim was based on allegations of discriminatory
discipline as well as the noose incident. Id. at 1511. Though we
did not refer to the discriminatory discipline in finding that the
jury reasonably could conclude that the employer was directly
liable for its supervisors' conduct, the supervisors clearly were
acting within the scope of their employment in taking disciplinary
action against plaintiff. Thus, the employer would have been
directly liable on that basis as well.
24
supervisory and disciplinary authority does not support a finding
that they were acting within the scope of their employment in
subjecting Faragher to offensive language, gestures, and touching.
Thus, the district court erred in holding the City directly liable
for that conduct.
Vance demonstrates that Steele overstates the case in saying
that, in a pure hostile environment setting, an employer may be
liable only when the corporate defendant knew or should have known
of the harassment and failed to take prompt remedial action. An
employer also may be directly liable if, as in Vance, the harasser
acted as the employer's agent in creating the hostile work
environment. Still, Steele accurately describes the rule for
employer liability in the vast majority of hostile environment
cases. Vance's finding of direct employer liability is unlikely to
be replicated in pure hostile environment cases because the facts
of that case were exceptional. Rarely will a supervisor or other
employee act within the scope of his employment in creating a
hostile work environment. In pure hostile work environment cases,
therefore, Steele generally will govern employer liability.14
14
The only other possible ground for the City's direct
liability would be that Terry and Silverman were aided in
accomplishing the harassment by the existence of the agency
relationship. See Sparks, 830 F.2d at 1559-60 (citing Restatement
(Second) of Agency § 219(2)(d)). This basis for direct liability--
like direct liability for acts within the scope of employment--
typically occurs only in quid pro quo harassment cases. For
example, in Sparks, the evidence showed that the harasser used the
authority delegated to him by the company to assist him in the
harassment; he repeatedly reminded the victim that he could fire
her if she refused his advances.
Id. 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).
25
D. Indirect Liability of City for Hostile Environment Sexual
Harassment.
The district court found that the City had no actual knowledge
of the sexual harassment but had constructive knowledge due to the
harassment's pervasiveness. 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 indirectly 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 indirectly 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
However, even in a hostile environment case, the existence of the
agency relationship may aid in accomplishing the harassment. See,
e.g., Gary v. Long, 59 F.3d at 1397; Karibian v. Columbia
University, 14 F.3d at 780. We therefore examine whether the
district court's holding may be affirmed on this ground.
The evidence does not support a finding that Terry and
Silverman were aided, within the meaning of the common law, in
their harassment of Faragher by their agency relationship with the
City. As the D.C. Circuit noted, a supervisor is always, in a
sense, aided in accomplishing the tort by the existence of the
agency because his responsibilities include close proximity to and
regular contact with the victim. Gary v. Long, 59 F.3d at 1397.
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. In Vance, for example,
although the supervisor's conduct was egregiously offensive, it
could be viewed as conduct associated with the agency status in
that it was purportedly meant to increase productivity. Here,
however, the offensive remarks, gestures, and touching cannot
reasonably be viewed as conduct associated with Terry's and
Silverman's status as agents of the
City.
26
F.2d at 1316;
Vance, 863 F.2d at 1512;
Henson, 682 F.2d at 905.15
A plaintiff can prove an employer's knowledge of harassment by
showing that she complained to higher management.
Vance, 863 F.2d
at 1512;
Huddleston, 845 F.2d at 904. 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 City.16
A plaintiff also can prove an employer's knowledge by showing
that the harassment was pervasive enough to charge the employer
with constructive knowledge. Vance, 863 F.2d at 1512;
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
15
Agency principles are the source of indirect employer
liability as well as direct employer liability. If an employer
knows or should know of sexual harassment and fails to remedy the
situation, then the employer is liable for its own negligence. See
Hirase-Doi, 61 F.3d at 783;
Bouton, 29 F.3d at 106-07.
16
In its discussion of the City's direct liability for Terry's
and Silverman's conduct, however, 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. For the City to be
directly liable for Gordon's conduct, Gordon must have harassed
Faragher while acting as the City's agent. However, Gordon did not
harass Faragher; he knew about someone else's inappropriate
conduct. And Gordon did not receive that information as the City's
agent; he received it as someone held in high repute by his
colleagues.
27
harassment, making the City indirectly liable for such conduct."
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. See Vance, 863 F.2d at 1513. But
we cannot 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 environment's abusiveness. Thus, the
district court erred to the extent that it conflated the two
inquiries.
The question of constructive knowledge is an issue of fact
reviewed for clear error. Reich, 28 F.3d at 1082. 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.
Neither the district court nor Faragher has pointed to any factual
basis for concluding that the City should have known of their
conduct. The lifeguards were stationed at a remote location and
had little contact with City officials. The district court clearly
28
erred in finding that the City's knowledge may be inferred solely
from the fact that the conduct was pervasive enough to create an
abusive work environment.
E. Constructive Knowledge of Terry's Unfitness Under Florida
Negligent Retention Law.
Finally, Faragher and Ewanchew contend that the district court
erred in finding that, for purposes of their negligent supervision
claims, the City did not have actual or constructive notice of
Terry's conduct. Our review of the record leads us to agree with
the City that the district court's finding that the City had no
notice of Terry's conduct is not clearly erroneous.
VI. 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.
29
