## Facts

- Beth Ann Faragher worked as a part-time and seasonal ocean lifeguard for the City of Boca Raton’s Marine Safety Section from 1985 to 1990.
- Two supervisory employees, Bill Terry and David Silverman, exercised day-to-day authority over Faragher and other lifeguards.
- Faragher alleged the supervisors created a sexually hostile work environment through uninvited touching, lewd remarks, and derogatory talk about women.
- Allegations included statements suggesting women would not be promoted and a threat tying workplace duties to dating a supervisor.
- Faragher sued the City under Title VII, alleging sex discrimination in the terms and conditions of employment, and sought nominal damages, costs, and attorney’s fees.

## Issues

1. Under what circumstances is an employer liable under Title VII for a supervisor’s sexual harassment that creates a hostile work environment?
2. When, if ever, may an employer avoid vicarious liability for supervisor harassment in the absence of a tangible employment action?
3. What employer and employee conduct is relevant to any affirmative defense to vicarious liability in hostile-environment cases?

## Decision

- The Supreme Court reversed the Eleventh Circuit and remanded.
- The Court held that an employer is vicariously liable for actionable hostile-environment harassment by a supervisor, subject to an affirmative defense when no tangible employment action occurs.
- The affirmative defense requires proof that (1) the employer exercised reasonable care to prevent and promptly correct harassing behavior, and (2) the employee unreasonably failed to use available preventive or corrective opportunities or otherwise avoid harm.
- Applying that framework, the Court concluded the City could not establish the defense because it failed to effectively disseminate and implement its anti-harassment policy among the relevant employees and failed to monitor supervisors’ conduct.

## Legal Principles

- Title VII employer liability for supervisor harassment is informed by agency principles, but those principles are applied in a manner consistent with Title VII’s purposes.
- If a supervisor’s harassment culminates in a tangible employment action, the employer is strictly vicariously liable and no affirmative defense is available.
- If a supervisor creates a hostile work environment without a tangible employment action, the employer is vicariously liable but may assert a two-part affirmative defense based on reasonable prevention/correction and unreasonable employee failure to utilize protections.
- An employer’s “reasonable care” generally requires more than a written policy; it must be effectively communicated and supported by functioning reporting and corrective mechanisms.

## Conclusion

The Court established that supervisor-created hostile work environments trigger vicarious employer liability under Title VII, while allowing a limited affirmative defense in cases without tangible employment action that turns on the employer’s reasonable prevention and correction efforts and the employee’s reasonable use of available remedies.


Faragher v. City of Boca Raton, 524 U.S. 775 (1998)