Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth

Faragher and Burlington Industries both stood for the same proposition: employers are vicariously liable for the actions of their supervisors in sexual harassing employees even if they did not ratify or approve of their actions, or even if they had policies prohibiting sexual harassment in place. However, the Supreme Court, decided in these two 1998 cases that employers could defend themselves against supervisor sexual harassment cases by proving (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm. Even with these two caveats, however, the Supreme Court expressly held that these defenses were not available “when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.”


Inside Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth