524 U.S. 742 (1998) (U.S. Supreme Court)
Burlington Industries, Inc. v.
Under Title VII, when a supervisor creates a hostile work environment without a tangible employment action, is the employer vicariously liable, and if so, what, if any, affirmative defense is available to the employer?
An employer is vicariously liable under Title VII for a hostile work environment created by a supervisor with immediate (or successively higher) authority over the employee. If the supervisor's harassment culminates in a tangible employment action—such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits—the employer is strictly liable and may not raise an affirmative defense. If no tangible employment action occurs, the employer is still vicariously liable but may assert an affirmative defense by proving: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Yes. The employer is vicariously liable for a supervisor's creation of a hostile work environment. Where no tangible employment action occurred, the employer may avoid liability or limit damages by establishing the two-pronged affirmative defense. Because Ellerth did not suffer a tangible employment action, Burlington may attempt to prove the affirmative defense on remand.
Ellerth, paired with Faragher, established the modern framework for supervisor harassment under Title VII. It clarified that employer liability turns on the presence of a tangible employment action and introduced the two-pronged Faragher/Ellerth affirmative defense for cases without such an action. The decision moved Title VII doctrine away from the rigid quid pro quo/hostile environment labels and toward an agency- and policy-driven approach that rewards effective prevention and encourages reporting. For law students, Ellerth is fundamental to exam analysis and practice: it provides the elements of the affirmative defense, a definition of tangible employment action, and the proper standard for supervisor versus co-worker harassment (vicarious liability versus negligence). It also informs compliance counseling: employers must implement robust policies, training, and prompt corrective action to preserve the defense, while employees must utilize complaint mechanisms absent a reasonable justification for not doing so.