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"Quid pro quo" and "hostile work environment" do not appear in the statutory
text. The terms appeared first in the academic literature, see C. MacKinnon, Sexual Harassment of Working
Women (1979); found their way into decisions of the Courts of Appeals, see, e.g., Henson v. Dundee,
682 F.2d 897, 909 (CA11 1982); and were mentioned in this Court’s decision in Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57 (1986). See generally E. Scalia, The Strange Career of Quid Pro
Quo Sexual Harassment, 21 Harv. J. L. & Pub. Policy 307 (1998).
In Meritor, the terms served a specific and limited purpose. There we considered whether the conduct
in question constituted discrimination in the terms or conditions of employment in violation of Title
VII. We assumed, and with adequate reason, that if an employer demanded sexual favors from an employee
in return for a job benefit, discrimination with respect to terms or conditions of employment was explicit.
Less obvious was whether an employer’s sexually demeaning behavior altered terms or conditions of employment
in violation of Title VII. We distinguished between quid pro quo claims and hostile environment
claims, see 477 U.S., at 65, and said both were cognizable under Title VII, though the latter requires
harassment that is severe or pervasive. Ibid. The principal significance of the distinction is
to instruct that Title VII is violated by either explicit or constructive alterations in the terms or
conditions of employment and to explain the latter must be severe or pervasive. The distinction was not
discussed for its bearing upon an employer’s liability for an employee’s discrimination. On this question
Meritor held, with no further specifics, that agency principles controlled. Id., at 72.
Nevertheless, as use of the terms grew in the wake of Meritor, they acquired their own significance.
The standard of employer responsibility turned on which type of harassment occurred. If the plaintiff
established a quid pro quo claim, the Courts of Appeals held, the employer was subject to vicarious
liability. See Davis v. Sioux City, 115 F.3d 1365, 1367 (CA8 1997); Nichols v. Frank,
42 F. 3d 503, 513—514 (CA9 1994); Bouton v. BMW of North America, Inc., 29 F.3d 103,
106—107 (CA3 1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1127 (CA 10 1993); Kauffman
v. Allied Signal, Inc., 970 F.2d 178, 185—186 (CA6), cert. denied, 506 U.S. 1041 (1992); Steele
v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (CA11 1989). The rule encouraged Title
VII plaintiffs to state their claims as quid pro quo claims, which in turn put expansive pressure
on the definition. The equivalence of the quid pro quo label and vicarious liability is illustrated
by this case. The question presented on certiorari is whether Ellerth can state a claim of quid pro
quo harassment, but the issue of real concern to the parties is whether Burlington has vicarious liability
for Slowik’s alleged misconduct, rather than liability limited to its own negligence. The question presented
for certiorari asks:
"Whether a claim of quid pro quo sexual harassment may be stated under Title VII . . . where
the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered
any tangible effects on the compensation, terms, conditions or privileges of employment as a consequence
of a refusal to submit to those advances?" Pet. for Cert. i.
We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII
litigation. To the extent they illustrate the distinction between cases involving a threat which is carried
out and offensive conduct in general, the terms are relevant when there is a threshold question whether
a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible
employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes
that the employment decision itself constitutes a change in the terms and conditions of employment that
is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable,
however, the conduct must be severe or pervasive. Because Ellerth’s claim involves only unfulfilled threats,
it should be categorized as a hostile work environment claim which requires a showing of severe or pervasive
conduct. See Oncale v. Sundowner Offshore Services, Inc., 523 U. S. , (1998) (slip op.,
at 6); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). For purposes of this case,
we accept the District Court’s finding that the alleged conduct was severe or pervasive. See supra,
at 3. The case before us involves numerous alleged threats, and we express no opinion as to whether
a single unfulfilled threat is sufficient to constitute discrimination in the terms or conditions of employment.
When we assume discrimination can be proved, however, the factors we discuss below, and not the categories
quid pro quo and hostile work environment, will be controlling on the issue of vicarious liability.
That is the question we must resolve.
III
We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile
work environment by making explicit threats to alter a subordinate’s terms or conditions of employment,
based on sex, but does not fulfill the threat. We turn to principles of agency law, for the term "employer"
is defined under Title VII to include "agents." 42 U.S.C. §2000e(b); see Meritor, supra,
at 72. In express terms, Congress has directed federal courts to interpret Title VII based on agency
principles. Given such an explicit instruction, we conclude a uniform and predictable standard must be
established as a matter of federal law. We rely "on the general common law of agency, rather than
on the law of any particular State, to give meaning to these terms." Community for Creative Non-Violence
v. Reid, 490 U.S. 730, 740 (1989). The resulting federal rule, based on a body of case law
developed over time, is statutory interpretation pursuant to congressional direction. This is not federal
common law in "the strictest sense, i.e., a rule of decision that amounts, not simply to an
interpretation of a federal statute . . . , but, rather, to the judicial ‘creation’ of a special federal
rule of decision." Atherton v. FDIC, 519 U.S. 213, 218 (1997). State court decisions,
applying state employment discrimination law, may be instructive in applying general agency principles,
but, it is interesting to note, in many cases their determinations of employer liability under state law
rely in large part on federal court decisions under Title VII. E.g., Arizona v. Schallock, 189
Ariz. 250, 259, 941 P. 2d 1275, 1284 (1997); Lehmann v. Toys ‘R’ Us, Inc., 132 N. J. 587,
622, 626 A. 2d 445, 463 (1993); Thompson v. Berta Enterprises, Inc., 72 Wash. App. 531,
537—539, 864 P. 2d 983, 986— 988 (1994).
As Meritor acknowledged, the Restatement (Second) of Agency (1957) (hereinafter Restatement), is
a useful beginning point for a discussion of general agency principles. 477 U. S., at 72. Since our decision
in Meritor, federal courts have explored agency principles, and we find useful instruction in their
decisions, noting that "common-law principles may not be transferable in all their particulars to
Title VII." Ibid. The EEOC has issued Guidelines governing sexual harassment claims under
Title VII, but they provide little guidance on the issue of employer liability for supervisor harassment.
See 29 CFR § 1604.11(c) (1997) (vicarious liability for supervisor harassment turns on "the particular
employment relationship and the job functions performed by the individual").
A
Section 219(1) of the Restatement sets out a central principle of agency law:
"A master is subject to liability for the torts of his servants committed while acting in the scope
of their employment."
An employer may be liable for both negligent and intentional torts committed by an employee within the
scope of his or her employment. Sexual harassment under Title VII presupposes intentional conduct. While
early decisions absolved employers of liability for the intentional torts of their employees, the law
now imposes liability where the employee’s "purpose, however misguided, is wholly or in part to further
the master’s business." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law
of Torts §70, p. 505 (5th ed. 1984) (hereinafter Prosser and Keeton on Torts). In applying scope of employment
principles to intentional torts, however, it is accepted that "it is less likely that a willful tort
will properly be held to be in the course of employment and that the liability of the master for such
torts will naturally be more limited." F. Mechem, Outlines of the Law of Agency §394, p. 266 (P.
Mechem 4th ed., 1952). The Restatement defines conduct, including an intentional tort, to be within the
scope of employment when "actuated, at least in part, by a purpose to serve the [employer],"
even if it is forbidden by the employer. Restatement §§228(1)(c), 230. For example, when a salesperson
lies to a customer to make a sale, the tortious conduct is within the scope of employment because it benefits
the employer by increasing sales, even though it may violate the employer’s policies. See Prosser and
Keeton on Torts §70, at 505—506.
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