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JUSTICE KENNEDY delivered the opinion of the Court.
We decide whether, under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C.
§ 2000e et seq., an employee who refuses the unwelcome and threatening sexual advances of a supervisor,
yet suffers no adverse, tangible job consequences, can recover against the employer without showing the
employer is negligent or otherwise at fault for the supervisor’s actions.
I
Summary judgment was granted for the employer, so we must take the facts alleged by the employee to be
true. United States v. Diebold, Inc. 369 U.S. 654, 655 (1962) (per curiam). The employer
is Burlington Industries, the petitioner. The employee is Kimberly Ellerth, the respondent. From March
1993 until May 1994, Ellerth worked as a salesperson in one of Burlington’s divisions in Chicago, Illinois.
During her employment, she alleges, she was subjected to constant sexual harassment by her supervisor,
one Ted Slowik.
In the hierarchy of Burlington’s management structure, Slowik was a mid-level manager. Burlington has
eight divisions, employing more than 22,000 people in some 50 plants around the United States. Slowik
was a vice president in one of five business units within one of the divisions. He had authority to make
hiring and promotion decisions subject to the approval of his supervisor, who signed the paperwork. See
912 F. Supp, 1101, 1119, n. 14 (ND Ill. 1996). According to Slowik’s supervisor, his position was "not
considered an upper-level management position," and he was "not amongst the decision-making
or policy-making hierarchy." Ibid. Slowik was not Ellerth’s immediate supervisor. Ellerth
worked in a two-person office in Chicago, and she answered to her office colleague, who in turn answered
to Slowik in New York.
Against a background of repeated boorish and offensive remarks and gestures which Slowik allegedly made,
Ellerth places particular emphasis on three alleged incidents where Slowik’s comments could be construed
as threats to deny her tangible job benefits. In the summer of 1993, while on a business trip, Slowik
invited Ellerth to the hotel lounge, an invitation Ellerth felt compelled to accept because Slowik was
her boss. App. 155. When Ellerth gave no encouragement to remarks Slowik made about her breasts, he told
her to "loosen up" and warned, "[y]ou know, Kim, I could make your life very hard or very
easy at Burlington." Id., at 156.
In March 1994, when Ellerth was being considered for a promotion, Slowik expressed reservations during
the promotion interview because she was not "loose enough." Id., at 159. The comment
was followed by his reaching over and rubbing her knee. Ibid. Ellerth did receive the promotion;
but when Slowik called to announce it, he told Ellerth, "you’re gonna be out there with men who work
in factories, and they certainly like women with pretty butts/legs." Id., at 159—160.
In May 1994, Ellerth called Slowik, asking permission to insert a customer’s logo into a fabric sample.
Slowik responded, "I don’t have time for you right now, Kim—unless you want to tell me what you’re
wearing." Id., at 78. Ellerth told Slowik she had to go and ended the call. Ibid. A
day or two later, Ellerth called Slowik to ask permission again. This time he denied her request, but
added something along the lines of, "are you wearing shorter skirts yet, Kim, because it would make
your job a whole heck of a lot easier." Id., at 79.
A short time later, Ellerth’s immediate supervisor cautioned her about returning telephone calls to customers
in a prompt fashion. 912 F. Supp., at 1109. In response, Ellerth quit. She faxed a letter giving reasons
unrelated to the alleged sexual harassment we have described. Ibid. About three weeks later, however,
she sent a letter explaining she quit because of Slowik’s behavior. Ibid.
During her tenure at Burlington, Ellerth did not inform anyone in authority about Slowik’s conduct, despite
knowing Burlington had a policy against sexual harassment. Ibid. In fact, she chose not to inform
her immediate supervisor (not Slowik) because " ‘it would be his duty as my supervisor to report
any incidents of sexual harassment.’ " Ibid. On one occasion, she told Slowik a comment he
made was inappropriate. Ibid.
In October 1994, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission
(EEOC), Ellerth filed suit in the United States District Court for the Northern District of Illinois,
alleging Burlington engaged in sexual harassment and forced her constructive discharge, in violation of
Title VII. The District Court granted summary judgment to Burlington. The Court found Slowik’s behavior,
as described by Ellerth, severe and pervasive enough to create a hostile work environment, but found Burlington
neither knew nor should have known about the conduct. There was no triable issue of fact on the latter
point, and the Court noted Ellerth had not used Burlington’s internal complaint procedures. Id.,
at 1118. Although Ellerth’s claim was framed as a hostile work environment complaint, the District Court
observed there was a quid pro quo "component" to the hostile environment. Id.,
at 1121. Proceeding from the premise that an employer faces vicarious liability for quid pro quo harassment,
the District Court thought it necessary to apply a negligence standard because the quid pro quo merely
contributed to the hostile work environment. See id., at 1123. The District Court also dismissed
Ellerth’s constructive discharge claim.
The Court of Appeals en banc reversed in a decision which produced eight separate opinions and no consensus
for a controlling rationale. The judges were able to agree on the problem they confronted: Vicarious liability,
not failure to comply with a duty of care, was the essence of Ellerth’s case against Burlington on appeal.
The judges seemed to agree Ellerth could recover if Slowik’s unfulfilled threats to deny her tangible
job benefits was sufficient to impose vicarious liability on Burlington. Jansen v. Packing Corp.
of America, 123 F. 3d 490, 494 (CA7 1997) (per curiam). With the exception of Judges Coffey
and Easterbrook, the judges also agreed Ellerth’s claim could be categorized as one of quid pro quo
harassment, even though she had received the promotion and had suffered no other tangible retaliation.
Ibid.
The consensus disintegrated on the standard for an employer’s liability for such a claim. Six judges,
Judges Flaum, Cummings, Bauer, Evans, Rovner, and Diane P. Wood, agreed the proper standard was vicarious
liability, and so Ellerth could recover even though Burlington was not negligent. Ibid. They had
different reasons for the conclusion. According to Judges Flaum, Cummings, Bauer, and Evans, whether a
claim involves a quid pro quo determines whether vicarious liability applies; and they in turn
defined quid pro quo to include a supervisor’s threat to inflict a tangible job injury whether
or not it was completed. Id., at 499. Judges Wood and Rovner interpreted agency principles to impose
vicarious liability on employers for most claims of supervisor sexual harassment, even absent a quid
pro quo. Id., at 565. . . .
II
At the outset, we assume an important proposition yet to be established before a trier of fact. It is
a premise assumed as well, in explicit or implicit terms, in the various opinions by the judges of the
Court of Appeals. The premise is: a trier of fact could find in Slowik’s remarks numerous threats to retaliate
against Ellerth if she denied some sexual liberties. The threats, however, were not carried out or fulfilled.
Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct
from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile
work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in
making a rough demarcation between cases in which threats are carried out and those where they are not
or are absent altogether, but beyond this are of limited utility.
Section 703(a) of Title VII forbids
"an employer—
"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions or privileges of employment, because
of such individual’s . . . sex." 42 U.S.C. §2000e— 2(a)(1).
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