Burlington Industries, Inc. v. Ellerth

PETITIONER: Burlington Industries, Inc.
LOCATION: United States Department of State

DOCKET NO.: 97-569
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 524 US 742 (1998)
ARGUED: Apr 22, 1998
DECIDED: Jun 26, 1998

Barbara D. Underwood - Argued the cause for the United States, as amicus curiae, supporting the respondent
Ernest T. Rossiello - Argued the cause for the respondent
James J. Casey - Argued the cause for the petitioner

Facts of the case

After working for Burlington Industries for 15 months, Kimberly B. Ellerth quit because she allegedly suffered sexual harassment by her supervisor - Ted Slowik. Despite her refusals of Slowik's advances Ellerth did not suffer any tangible retaliation and was, in fact, promoted once. Moreover, while she remained silent about Slowik's conduct despite her knowledge of Burlington's policy against sexual harassment, Ellerth challenged Burlington claiming that the company forced her constructive discharge.


Can an employee, who despite refusing sexually harassing advances by a supervisor suffers no adverse job-related consequences, recover against an employer under Title VII of the Civil Rights Acts of 1964, without showing that the employer was responsible for the supervisor's harassing conduct?

Media for Burlington Industries, Inc. v. Ellerth

Audio Transcription for Oral Argument - April 22, 1998 in Burlington Industries, Inc. v. Ellerth

William H. Rehnquist:

We'll hear argument now in No. 97-569, Burlington Industries v. Kimberly Ellerth.

Mr. Casey.

James J. Casey:

Mr. Chief Justice, and may it please the Court:

Is an employer strictly or automatically liable for job-related threats made in conjunction with sexual advances when the employee has suffered no tangible job detriment for the rejection of those advances... in other words, the unfulfilled threat?

We submit that the answer to that question is no.

Strict or automatic liability should not be applied in a situation of unfulfilled threats, but rather should be analyzed--

Sandra Day O'Connor:

Mr. Casey.

James J. Casey:


Sandra Day O'Connor:

It sounds to me like you're asking question 2 of the questions presented on petition for certiorari, which is whether strict liability is the proper standard.

Now, I thought the Court didn't grant certiorari on question 2.

I thought we granted certiorari on question 1.

James J. Casey:

That is correct.

Sandra Day O'Connor:

Most of your brief addresses question 2.

I mean, are we going to talk about question 1, on which cert was granted?

James J. Casey:

Justice, the... the... the question... question 1 is the un... is whether or not the strict liability standard ought to apply in the unfulfilled threat situation, where... where there is no adverse job consequence.

Sandra Day O'Connor:

Well, it doesn't address strict liability actually.

It says whether a claim of quid pro quo sexual harassment may be stated under Title VII, when the plaintiff has neither submitted to the sexual advances nor suffered any tangible effects.

That's the question.

James J. Casey:

Yes, Justice.


Sandra Day O'Connor:

It... it doesn't refer to strict liability.

James J. Casey:

--Under... under the assumption, Justice, that in... that most courts, who have addressed the issue, have addressed quid pro quo as a strict liability issue.

And that's why I referred to the strict liability for the unfulfilled threat.

And... and that's why I believe it is... it is cognizable under question 1, which is the question that the Court did accept.

You are quite correct about that.

But almost all of the courts who have addressed quid pro quo sexual harassment have addressed it under the theory of strict liability for the employer, where there has been a adverse job action, such as a termination of employment, a demotion, a transfer to a less fulfilling job, a loss of benefits.

These are all tangible job detriments, where the company has acted, through... through a supervisor.

Antonin Scalia:

Well, there... there's really no other reason to have the quid pro quo category, is there?

James J. Casey:

Absolutely not, Your Honor.

Antonin Scalia:

Except to establish a different standard of liability.