1. How could the city have avoided the outcome? Explain.
2. Do you think that it would have made sense for the city to consider the particulars of the circumstances here, such as that these were lifeguards, in a remote location, who by the nature of the job would be dressed in fairly little clothing, and who, because of the environment (the beach and recreational facilities) might need a different approach to sexual harassment than, say, office employees? Explain.
3. What do you think of the Court’s affirmative defense given to employers and employees? What are the pros and cons?

Issue: Whether an employer is vicariously liable for the actions of its supervisory employees who fail to exercise reasonable care in preventing sexual harassment.

Facts: A lifeguard who was employed at a city beach away from the main offices was subjected to acts of sexual harassment by a supervisory employee and alleged it created a hostile work environment which discriminated against her in the terms and conditions of her employment. The city adopted a sexual harassment policy for all employees, but failed to disseminate it among the employees where they worked. Faragher did not complain of her harassment to her supervisors, two of whom were engaging in the activity. The Court noted that since Meritor substantive contours of hostile environment had been established, courts had struggled to derive manageable standards to govern employer liability for hostile environment perpetrated by supervisory employees. The Court adopted the Restatement §219(1) approach, that “a master is subject to liability for the torts of his servant committed while acting in the scope of their employment.” The scope of employment is traditionally defined as “including conduct of the kind a servant is employed to perform, occurring substantially within the authorized time and space limits and actuated, at least in part by a purpose to serve the master but excluding an intentional use of force unexpectable by the master.” This was adopted here, in part, because “a pervasively hostile work environment of sexual harassment is never (one would hope) authorized, but the supervisor is clearly charged with maintaining a productive, safe work environment. The supervisor directs and controls the conduct of the employees, and the manner of doing so may inure to the employer’s benefit or detriment, including subjecting the employer to Title VII liability.” The Court agreed with Faragher that in implementing Title VII, it makes sense to hold an employer vicariously liable for some tortuous conduct of a supervisor made possible by abuse of his supervisory authority. When the supervisor discriminated in the terms and conditions of a subordinate’s employment, his actions necessarily draw upon his superior position over the people who report to him or those under them and an employee generally cannot check a supervisor’s abusive conduct the same way she might deal with abuse from a co-worker.

When no tangible action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (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 otherwise.

Decision: Yes, an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee.