## Facts

- Lori A. Todd worked for Ortho Biotech, Inc. as a sales representative (“product specialist”).
- In September 1992, Todd attended Ortho’s national sales meeting in Boston.
- James Moreland, Ortho’s Director of Trade Relations, socialized with Todd and others after evening events; he drank alcohol and exchanged sexually oriented jokes with Todd.
- In a hotel elevator, Moreland grabbed Todd and attempted to kiss her; she pushed him away.
- Moreland suggested Todd accompany him to his room to receive an apology; Todd went, stating she feared upsetting a high-ranking company official.
- In Moreland’s room, he overpowered Todd, pinned her to a bed, and attempted to rape her; she escaped.
- Todd reported the incident to Ortho personnel during the meeting, including the Director of Management Development and the Director of Employee Relations.
- After receiving the report, Ortho promptly separated Moreland from Todd, arranged for Todd’s early departure, offered support, investigated, and ultimately discharged Moreland.
- Todd sued Ortho under Title VII and the Minnesota Human Rights Act, alleging hostile work environment based on the assault and related meeting conduct.

## Issues

1. Whether Moreland qualified as Todd’s “supervisor” for Title VII vicarious liability under the standards announced in *Ellerth* and *Faragher*.
2. If Moreland was not a supervisor, whether Ortho was liable under a negligence standard requiring employer notice and failure to take proper remedial action.
3. If vicarious liability principles applied, whether Ortho established the *Ellerth/Faragher* affirmative defense by exercising reasonable care to prevent and promptly correct harassment.

## Decision

- The Eighth Circuit reversed the district court’s judgment for Todd and directed entry of judgment for Ortho.
- The court held Moreland did not have authority to take tangible employment actions against Todd and thus was not her supervisor for vicarious-liability purposes.
- Applying the coworker-harassment standard, the court concluded Ortho took timely and appropriate remedial action after it learned of the assault.
- The court further indicated that, even if the supervisor framework applied, Ortho’s preventive measures and prompt corrective response would satisfy the *Ellerth/Faragher* affirmative defense.

## Legal Principles

- For hostile work environment harassment by a nonsupervisory employee, an employer is liable only if it knew or should have known of the harassment and failed to take proper remedial action.
- “Supervisor” status for Title VII vicarious liability turns on whether the harasser is empowered to take tangible employment actions against the victim, not on corporate rank alone.
- Prompt, effective remedial measures upon notice—such as removing the harasser from contact with the victim, investigating, and imposing serious discipline—can defeat employer liability for coworker harassment.
- When the harasser is a supervisor and no tangible employment action occurs, an employer may avoid vicarious liability by showing reasonable care to prevent and promptly correct harassment and an unreasonable failure by the employee to use preventive or corrective opportunities.

## Conclusion

The Eighth Circuit held Ortho was not liable under Title VII or the Minnesota Human Rights Act for Moreland’s assault because he was not Todd’s supervisor for vicarious-liability purposes and, once notified, Ortho responded promptly and effectively to end the misconduct and discipline the offender.


Todd v. Ortho Biotech, Inc., 175 F.3d 595 (8th Cir. 1999)