## Facts

- Kimberly B. Ellerth worked as a salesperson for Burlington Industries in a Chicago-area office from March 1993 to May 1994.
- Ellerth alleged her supervisor, a division vice president with authority to make or recommend employment decisions, repeatedly made sexually offensive remarks and gestures.
- Ellerth identified three incidents in which the supervisor’s statements could be read as conditioning workplace benefits on sexual compliance, including comments implying her career would improve if she “loosened up” and changed her attire.
- Ellerth refused the supervisor’s advances.
- No tangible employment action was taken against Ellerth; she was not demoted, denied a raise, or fired, and she received a promotion during her employment.
- Burlington maintained an anti-harassment policy and complaint procedures known to Ellerth, but she did not report the alleged harassment through those channels.
- Ellerth resigned and sued under Title VII, alleging sexual harassment creating a hostile work environment and constructive discharge.
- The district court granted summary judgment to Burlington; the Seventh Circuit (en banc) reversed; the Supreme Court granted review to clarify employer liability for supervisor harassment when no tangible employment action occurs.

## Issues

1. Under Title VII, when a supervisor’s sexual harassment is actionable but results in no tangible employment action, is the employer vicariously liable without a showing of employer negligence or fault?
2. What role, if any, should “quid pro quo” and “hostile environment” labels play in determining employer liability for supervisor harassment?
3. If vicarious liability applies absent a tangible employment action, what affirmative defense, if any, may an employer assert?

## Decision

- The Court held that an employer is subject to vicarious liability for a supervisor’s actionable sexual harassment of an employee.
- When the harassment culminates in a tangible employment action (e.g., discharge, demotion, undesirable reassignment), the employer is vicariously liable and no affirmative defense is available.
- When no tangible employment action occurs, the employer may avoid liability by proving an affirmative defense: (1) the employer exercised reasonable care to prevent and promptly correct harassing behavior, and (2) the employee unreasonably failed to take advantage of preventive or corrective opportunities or otherwise avoid harm.
- The Court rejected making employer liability turn on whether the conduct is labeled “quid pro quo” or “hostile environment,” treating those categories as non-controlling.
- The judgment favoring Ellerth was affirmed in result but under a clarified standard; the case was remanded so Burlington could attempt to establish the affirmative defense.

## Legal Principles

- Title VII supervisor harassment can trigger vicarious employer liability based on agency principles, even absent proof that the employer was negligent.
- A “tangible employment action” is a significant change in employment status (e.g., hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits).
- If a supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable (no affirmative defense).
- If no tangible employment action occurs, the employer may raise a two-part affirmative defense requiring both reasonable employer prevention/correction and unreasonable employee failure to use available protections.
- The “quid pro quo”/“hostile environment” terminology does not control employer-liability analysis; the decisive inquiry is whether a tangible employment action occurred and whether the affirmative defense applies.

## Conclusion

The Court established that employers are vicariously liable for actionable supervisor sexual harassment under Title VII; absent a tangible employment action, liability may be avoided only if the employer proves reasonable prevention and correction and the employee unreasonably failed to use available complaint or corrective mechanisms.


Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)