Burlington Industries, Inc. v. Ellerth

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118 S.Ct. 2257 (1998); Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998); Burlington argued 22 April 1998, Faragher argued 25 March 1998, both decided 26 June 1998 by vote of 7 to 2; Kennedy for the Court in Burlington; Souter for the Court in Faragher, Thomas and Scalia dissenting in both.

Although these two cases were filed and argued separately, they both involved Title VII of the Civil Rights Act of 1964, they both were decided on the same day, they both engendered the same voting pattern among the justices, they both shared important language, and they both substantially clarified the law of sexual harassment in the workplace. The effect of the two decisions was to make some lawsuits against employers easier to win while rewarding companies with effective anti-harassment policies by limiting their legal exposure. The Court decided the cases at a particularly crucial time. The law of sexual harassment in the workplace had become substantially confused since the justices first addressed the issue in Meritor Savings Bank v. Vinson (1986). The sexual harassment suit by Paula Corbin Jones against President William Jefferson Clinton also served to heighten press interest in both cases.

In Burlington the justices faced the issue of so-called quid pro quo harassment. Kimberly Ellerth quit her job after 15 months as a sales-person in one of Burlington's many divisions. She insisted that her supervisor, Tom Slowik, had subjected her to constant harassment and demanded that she provide sexual favors in return for job advancement. Ellerth rebuffed all of these overtures, yet there was not tangible evidence that she had suffered retaliation. Moreover, she never informed Burlington Industries of the harassment, although the company's policies encouraged employees to do so. Moreover, she was promoted once.

The facts in Faragher were different. Beth Ann Faragher resigned her position as a lifeguard for the City of Boca Raton, Florida, after many years of service. Once she resigned, she claimed that her immediate supervisors, Bill Terry and David Silverman, had created a sexually hostile environment at work by repeatedly subjecting her and other female lifeguards to uninvited and offensive touching and by making lewd, offensive remarks about them. Unlike Burlington, the Faragher case raised the issue of what constituted a hostile work environment for women.

The high court's decisions in both cases drew sustained initial support from groups ranging from women's rights advocates to business organizations. Justice Anthony M. Kennedy's opinion in Burlington held that an employee who resists a supervisor's advances need not have suffered a tangible job detriment, such as dismissal or loss of a promotion, to be able to pursue a lawsuit against the company. At the same time, Kennedy also explained that such a suit cannot succeed if the company in question has an anti-harassment policy which an employee fails to use. In order for the company to be held liable under this new ruling it had to have been directly involved in the act of harassment, knew that such activity was going on, and failed to develop a set of aggressive policies to deal with harassment. Under these circumstances, the Court held that Ellerth should have the opportunity at trial to prove her case and that the company should have the opportunity to defend itself by showing it had a strong anti-harassment policy that the complaining employee had ignored.


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