Faragher v. City of Boca Raton

PETITIONER:Faragher
RESPONDENT:City of Boca Raton
LOCATION:United States Department of State

DOCKET NO.: 97-282
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 524 US 775 (1998)
ARGUED: Mar 25, 1998
DECIDED: Jun 26, 1998

ADVOCATES:
Harry A. Rissetto – Argued the cause for the respondent
Irving L. Gornstein – Argued the cause for the United States, as amicus curiae, by special leave of court, supporting the petitioner
William R. Amlong – Argued the cause for the petitioner

Facts of the case

After resigning as a lifeguard, Beth Ann Faragher brought an action against the City of Boca Raton and her immediate supervisors, alleging that the supervisors had created a sexually hostile atmosphere by touching, remarking, and commenting. Faragher asserted that this conduct constituted discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court concluded that Faragher’s supervisors’ conduct was sufficiently serious to alter the conditions of her employment and constitute an abusive working environment. The court then held that the city could be held liable. In reversing, the en banc Court of Appeals held that Faragher’s supervisors were not acting within the scope of their employment when they engaged in the harassing conduct, that knowledge of the harassment could not be imputed to the City, and that the City could not be held liable for negligence in failing to prevent it.

Question

May an employer be held liable under Title VII of the Civil Rights Act of 1964 for the acts of an employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination?

William H. Rehnquist:

We’ll hear argument first this morning in Number 97-282, Beth Ann Faragher v. the City of Boca Raton.

Now, Mr. Amlong.

William R. Amlong:

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

This is an employment discrimination case in which there are two issues facing the Court.

The first is whether the Court of Appeals applied too narrow a standard in the application of agency principles to supervisory liability under Title VII for sexual harassment.

The second is whether the Court of Appeals erred in reversing the findings of the District Court, who had found constructive and actual knowledge by an agent of the City, Robert Gordon, and had also imputed constructive knowledge to the City through the pervasiveness of the sexual harassment in this case.

The relief that we ask–

William H. Rehnquist:

That isn’t precisely the two questions in your petition, is it?

William R. Amlong:

–No, Your Honor.

It’s phrased somewhat differently.

William H. Rehnquist:

So the second question in your petition you see as basically Should the Court of Appeals have affirmed the District Court?

William R. Amlong:

Based on the factors I set forth in the petition, Mr. Chief Justice, that there was the pervasiveness that could give rise to constructive knowledge, and it should be re… clearly erroneous standard, that there was notice to an intermediate agent, Mr. Gordon, and that there was no dissemination of the sexual harassment policy.

William H. Rehnquist:

Well, what… what do you mean by permit pervasiveness?

William R. Amlong:

I mean, by pervasiveness, Mr. Chief Justice, that there were eight women who were sexually harassed by Mr. Terry and/or Mr. Silverman over a period of 4 years.

That’s what the record evidence showed.

And that’s what the District Court found.

William H. Rehnquist:

So pervasiveness means multiple victims, then?

William R. Amlong:

Pervasiveness can have more than one meaning.

But in this case, yes, it does, Your Honor.

Pervasiveness in the sense of Harris v. Forklift Systems, could mean one person with… kind of be secret pervasiveness without–

William H. Rehnquist:

Secret pervasiveness.

That’s–

William R. Amlong:

–A pervasiveness… a pervasiveness, Mr. Chief Justice, that would apply only to that person.

In this case, the pervasiveness is not only as to Beth Ann Faragher, the Petitioner, who was repeatedly and consistently sexually harassed, but was also to seven other women.

Now, it is that pervasiveness, Your Honor, that I argue gives rise to constructive notice.

It is that pervasiveness, Your Honor, that differs from the pervasiveness in Harris.

Antonin Scalia:

–I don’t know how… I mean, constructive notice, I can’t imagine how secret pervasiveness could ever… could ever give rise to constructive notice.

William R. Amlong:

Nor can I.–

Antonin Scalia:

Okay.

So you’re saying that it was so obvious that the employer must have known about it?

William R. Amlong:

–Either must have known about it or was engaged in willful ignorance about it.

Did not wish to know about it.

You can’t sexually harass eight women over a 4-year period and not expect the employer to know about it.

Antonin Scalia:

The employer is downtown, in… in city hall.

And all of this is going on across the highway, on the beach.

Now, is… is it implausible that he would know about it… that… that the employer would not know about it?

William R. Amlong:

Not at all, Your Honor.

Because, Justice Scalia, number one, the beach is 1.5 miles from city hall, roughly the distance from this Court to the Washington Monument.

Number two, corporations throughout this Nation have offices… IBM, for example, has offices throughout the Nation, headquartered in New York.

You can’t say that if there was sexual harassment going on in the IBM plant in Boca Raton, that IBM should not be responsible for it.

Here, they were not… here, they did not know about it because of two things.

Number one, Robert Gordon, who was a captain, an intermediate supervisor and someone who should be expected to have carried the message forward to city hall, declined to do so when he was told by–

Ruth Bader Ginsburg:

He wasn’t asked to do so.

I thought he was asked as a friend.

He was told as a friend, and asked what he though, as a friend.

Isn’t that what it seemed from the testimony?

William R. Amlong:

–No, Justice Ginsburg.

What is in the testimony is that they did… and what the trial judge found… is that they did find… that they did hold Mr. Gordon in very high repute.

And that’s why they came to him.

Mr. Gordon testified, however, that Nancy Ewanchew, a coplaintiff below, had asked him repeatedly, What can you do about this?

Can you make this stop?

Other women had complained to him.

Did they complain to him as a friend?

Yes.

Did that take away his status as an agent of the City?

No, Your Honor, it did not.

Ruth Bader Ginsburg:

Well, let me ask you about the third… what you list under “C”.

Suppose the City had had just a fine policy against this kind of conduct.

And it was included in the manual that every employee got.

And it had the telephone number in city hall to call when incidents like this came up.

Ruth Bader Ginsburg:

And everything else is the same.

Would there be Title VII liability for… what was it… Silverman and Terry’s conduct on the part of the City?

William R. Amlong:

Yes, Justice Ginsburg, there would be.

And that goes to the second ground on which we seek to hold the City liable.

Which is the invocation of the kind of agency principles that are embodied in the second clause–

Ruth Bader Ginsburg:

Well, then, what you make… you seem to make quite a thing out of this… there was no procedure that was… that was well known.

But now you say it doesn’t make any difference.

William R. Amlong:

–No, Your Honor.

It does make a difference.

Because what we are asking in the 219(2)(d) argument that we’re making is… and the Court of Appeals held that to impose liability on the City in those circumstances, that… under 219(2)(d)… that Mr. Gordon… I’m sorry… Mr. Silverman and Mr. Terry would have had to explicitly threatened Ms. Faragher or to actually used their power to harm.

What we are arguing, Justice Ginsburg, is that the dynamic of a supervisor/subordinate relationship gives rise to a reasonable fear of retaliation, so that these women will put up with this stuff.

Now, the City–

William H. Rehnquist:

Is… is that… that sounds like strict liability to me.

That sounds like strict liability.

William R. Amlong:

–No, it does not, Your Honor, with all due respect.

I believe it would be strict liability, Mr. Chief Justice and Justice Kennedy, if we argued, perhaps, under 219(1), that they were doing this in the course of their employment.

What we’re saying is that there is liability when they are aided in the commission of the tortious behavior.

Anthony M. Kennedy:

Well, but I… I inferred from your remarks… maybe improperly so… that the… they were aided, under the 219(d) formulation because of the subordinate/superior relation.

William R. Amlong:

Yes, Your Honor.

Anthony M. Kennedy:

Well, that’s strict liability.

William R. Amlong:

No, it’s not, Your Honor, respectfully.

Strict liability is–

Anthony M. Kennedy:

That’s strict liability whenever there is a… a superior that harasses a subordinate.

William R. Amlong:

–Strict liability, Justice Kennedy, is in such instances as somebody convicted of shooting birds over a baited field, somebody who is shown to have made a profit on insider trading, in… in short swing investments under 16(b) of the Securities Act of 1934.

Here–

Sandra Day O’Connor:

Well, could you give us some examples of situations in which the employer would not be liable under your hypothesis?

William R. Amlong:

–Yes, I can, Justice O’Connor.

Yes, I can.

Sandra Day O’Connor:

Well, would you?

[Laughter]

William R. Amlong:

Yes.

One example, for example, was in the Bouton v. BMW of North America case, out of the Third Circuit, where the… where the company had a strong policy against sexual harassment, communicated it broadly, that the plaintiff had herself used before.

What we’re asking–

Sandra Day O’Connor:

Well, you have just informed Justice Ginsburg that if the employer had had a strong policy, fully communicated, that it wouldn’t make any difference.

Now, what position are you taking?

William R. Amlong:

–I am taking the position, Your Honor, that, number one, in this case, there was no policy.

Number two, that the existence of a policy is a strong mitigating factor against imposing liability.

But that, number three–

Sandra Day O’Connor:

Well, then your answer to Justice Ginsburg was incorrect… it would make a difference if the employer had a policy–

William R. Amlong:

–Oh, it would certainly–

Sandra Day O’Connor:

–and that would be an excuse, so there would not be strict liability?

William R. Amlong:

–It would certainly make a difference.

And it would be one of those things to be weighed.

Because the plaintiff would have the burden of proof, to prove that the fear that she was expressing was a reasonable fear.

What we seek is–

Sandra Day O’Connor:

Is there any other example of when an employer would not be liable.

William R. Amlong:

–Yes, Justice O’Connor, there is.

For example, if a female police officer, on the midnight shift, complained about harassment by a sergeant on the afternoon shift, he would not be responsible then.

If a–

William H. Rehnquist:

Well, that’s because he’s not a direct supervisor, presumably.

William R. Amlong:

–Yes, Mr. Chief Justice.

William H. Rehnquist:

I thought Justice O’Connor was asking for an example where there was a direct supervisor who would not be liable.

Exactly.

William R. Amlong:

Mr. Chief Justice, the… we can’t envision every case.

The Bouton case was one in which there was a policy that was disseminated and had been used.

You’re going to have… the–

Antonin Scalia:

You would at least say that all of these cases have to go to trial?

William R. Amlong:

–Yes.

Antonin Scalia:

You would never be able to get… to get these cases disposed of before a full fledged trial–

William R. Amlong:

Justice–

Antonin Scalia:

–as to whether… whether the woman had a, quote, reasonable fear?

William R. Amlong:

–Justice Scalia, I don’t want to say “never”.

I would say that it is unlikely that summary judgment would be–

Antonin Scalia:

Well, when… when would it be, if all the woman has to do is say, I had a reasonable fear?

William R. Amlong:

–If it could be shown that her fear was unreasonable.

But, like negligence, the reasonability of her fear is something that likely is going to have to be weighed by the trier of fact.

Antonin Scalia:

Well, the company could have the clearest policy, and… and many other employees could have… could have used that policy to stop this kind of intimidation.

But if a particular woman has not used it, she could still have a trial on… on whether she was fearful enough… that… that’s an excuse?

William R. Amlong:

If she had not used it, and if she could explain why she did not use it.

We ask only that an objectively reasonable fear be taken into account.

Anthony M. Kennedy:

Well, incidentally, reasonable fear of what ridicule, retaliation, embarrassment?

Because I… I assume some of those will always be present.

William R. Amlong:

Well, in the cases in the studies cited at, I believe, note 32 of our brief, there is widespread fear amongst women of retaliation if they complain about sexual harassment.

Anthony M. Kennedy:

Okay, retaliation.

William R. Amlong:

Retaliation.

Anthony M. Kennedy:

That… that is to say, demotion and further bad treatment, et cetera?

William R. Amlong:

Yes, Your Honor.

Antonin Scalia:

It’s just women?

William R. Amlong:

No… no, Your Honor.

Antonin Scalia:

And is it just sexual harassment?

I mean, do you know anybody who isn’t… who isn’t afraid of… of, you know, criticizing his supervisor?

William R. Amlong:

Precisely not, Your Honor.

Antonin Scalia:

Jumping over the chain of command, and crit… nobody is not afraid of that, is he?

William R. Amlong:

I do… I do not, Your Honor.

And there… and that’s why there is a reasonable fear in the work place for complaining about this.

David H. Souter:

And that’s… that’s why there’s an absolute liability.

Yes.

There’s always going to be reasonable fear.

And, therefore, there’s always going to be absolute liability.

William R. Amlong:

No, Justice Souter, there is not always going to be reasonable fear.

William R. Amlong:

Because… there is going to be reasonable fear at the summary judgment stage.

I am not suggesting that these cases are going to be disposed of on summary judgment.

I think there’s plenty of time, however, that the juries will say, This is nonsense.

This woman–

Ruth Bader Ginsburg:

But let’s go back to what you conceded, at least I thought.

There’s a very clear policy.

It has been used successfully… the Third Circuit case.

So that could go to summary judgment, or not?

William R. Amlong:

–That case did not go to summary judgment.

I think that comes closer to it.

Ruth Bader Ginsburg:

Yes, but you said–

William R. Amlong:

I think… I think it’s a–

Ruth Bader Ginsburg:

–you said it could be mitigating, and it… I’m sort of fuzzy about… you give… on the one hand, you give have a clear policy, great prominence; but then it kind of drifts off into the wind.

William R. Amlong:

–Well, Justice Ginsburg, it’s going to depend on the… the factors of the work place.

Is the policy enforced?

How much power does–

Ruth Bader Ginsburg:

I really gave you an example of a policy that’s included in the manual.

Let’s have it posted on the guardhouse door.

Everyone knows about it, and there’s a number, in big letters, to call.

And I asked you… and everything else is the… the same.

These supervisors are just as gross.

Would there be a Title VII claim against the employer?

William R. Amlong:

–If the employee could demonstrate that, notwithstanding the policy, that she had a reasonable fear of retaliation if she came forward.

This would depend on–

Ruth Bader Ginsburg:

This is an objective fear or subjective?

William R. Amlong:

–No.

An objectively reasonable fear.

I would want to point out to the trier of fact the degree of control that the employer… that the supervisor exercised over the work place.

I would want to point out the other kind of rules they have there.

Is he allowed to hire and fire at whim?

William R. Amlong:

I would want to point out his history in dealing with employees.

I would want to deal with whether he… whether he has the reputation as a bully.

What we’re saying is that if the supervisor is allowed to get away with this behavior, that that gives rise to a reasonable fear, Justice Ginsburg.

If I may reserve the rest of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Amlong.

William R. Amlong:

Thank you, Chief Justice.

William H. Rehnquist:

Mr. Gornstein, we’ll hear from you.

Irving L. Gornstein:

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

Our position is that Respondent is potentially liable for the hostile work environment experienced by Petitioner on three different grounds.

First, that Respondent’s delegation of authority to Terry to run the beach, coupled with the failure to disseminate an anti harassment policy, made the creation of a hostile work environment possible.

Second, that knowledge of–

William H. Rehnquist:

Now, you… you would say that, and that alone, is… is sufficient to impose liability?

Irving L. Gornstein:

–That’s correct.

Although, I… I would have to elaborate on the standard for deciding when it is that the delegation of power has made the creation of the hostile work environment possible.

Antonin Scalia:

You don’t… this is not a negligence argument?

You’re not–

Irving L. Gornstein:

This is not an negligence argument.

The second ground is that the Respondent… knowledge of it should be imputed to Respondent, because one of Respondent’s supervisors knew about it.

And third a possible ground of liability is that the Respondent should have known about it, but did not, because it failed to disseminate an anti harassment policy.

Antonin Scalia:

–And that is negligence?

Irving L. Gornstein:

That is a “should have known” standard.

And the–

Antonin Scalia:

Is it a negligence standard?

Irving L. Gornstein:

–Correct.

And–

David H. Souter:

But it’s a… it’s a negligence… it’s a negligence standard that will always be satisfied if there is no policy?

Irving L. Gornstein:

–That’s–

David H. Souter:

So, in effect, it’s kind of an… an absolute policy standard?

Irving L. Gornstein:

–No.

I… I… I… I… there is a causation issue that goes along with the third theory.

David H. Souter:

Well, is there a causation issue… well, a causation issue on the first theory, too, then?

Irving L. Gornstein:

There… that… that’s correct.

David H. Souter:

You say they made it possible because–

Irving L. Gornstein:

That’s correct.

And on the third theory, it would have been, had the policy… would they have known about it had they had distributed… had they distributed a policy… an effective policy.

So there is a causation issue on the third question.

David H. Souter:

–How will… how will we ever know that if they haven’t distributed a policy?

Because we’ll never know how the… the… the policy, contrary to fact, would have worked.

Irving L. Gornstein:

Yes.

David H. Souter:

So won’t… won’t the effect of your third prong always be liability when there’s no policy?

Irving L. Gornstein:

Justice Souter, there is… there will be uncertainty in… in many cases.

And then the question will be who bears the risk of uncertainty in that situation.

David H. Souter:

And who is it going to be?

Irving L. Gornstein:

Well, I think a fair argument could be made that the employer of that situation… in that situation… should bear the risk–

David H. Souter:

Well, if that’s… if that’s the case, and… and what we’re uncertain about is how a policy that was never promulgated would have worked in fact, then the practical effect of the third prong is always to make the employer liable if there’s no policy.

Irving L. Gornstein:

–Well, if… if the… unless the employer can make that showing.

Or you reject–

David H. Souter:

Yes, but how can you ever do it?

Irving L. Gornstein:

–Or if you reject the view that he should have the burden, and place the burden on the plaintiff.

A plaintiff could satisfy that burden in a number of ways.

For example, in this case, the plaintiff herself could have testified that had there been an effective policy, I would have complained.

And then if that testimony is believed, causation is demonstrated.

William H. Rehnquist:

That sounds like running around Robin Hood’s barn.

I mean, we’re looking for something that’s fairly simple and easy to administer.

And that isn’t it.

Irving L. Gornstein:

Yes, Mr…. yes, Mr. Chief Justice.

But that… that is a… that is the classic negligence theory.

Which is, should the employer know… known about it.

I would like to–

Antonin Scalia:

Why do you need… why do you need a special policy?

Antonin Scalia:

I mean, isn’t it… do you really have to tell somebody that if your supervisor is doing something that you think is wrong or improper, you should talk to your supervisor’s supervisor?

Why do you need a policy for that?

Irving L. Gornstein:

–I… I think that the… the… the problem is difficult enough, that in most cases, if an employer does not adopt a policy, they would not be exercising reasonable care.

But I would leave room for cases in which an employer could show that it has exercised reasonable care in relationship to this problem if they have adopt… adopted policies.

Sandra Day O’Connor:

Yes, but don’t you think every employee in the country knows that if they’re mistreated, they can complain to somebody higher up the ladder?

I mean, it’s not like everybody is totally ignorant of these situations.

Irving L. Gornstein:

Well, there are two… two problems.

Not everybody knows about it, first of all, Justice O’Connor.

But even if they know about it, they may not be… they may not know that the employer is willing to do something about it.

And that’s why the… the… a policy… a clear policy against discrimination that is disseminated to everyone, and where the… the employer… it’s made clear–

Sandra Day O’Connor:

Well, it’s obviously helpful to have.

But I think we have a case here that requires us to grapple with a situation where there wasn’t an articulated policy.

And we’re trying to look at what reasonable people know and understand.

And I would have thought most people would know and understand that if you’re being mistreated, you can complain to a higher up.

Irving L. Gornstein:

–But I think that returns me to the first potential line… liability here.

And that is that there should be liability when the supervisor is aided by the agency relationship, in the sense that he is able to impose a hostile work environment because the employee reasonably fears adverse employment consequences if she resists or if she complains.

William H. Rehnquist:

But that… that’s a form of strict liability, it seems to me.

Because I think any employee is going to fear adverse consequences from… from a supervisor, even though the supervisor… the harassing supervisor has not made any threat at all, just by virtue of the position.

That’s why you laugh at his jokes.

I mean, everybody knows that.

That… that’s a–

Irving L. Gornstein:

Mr. Chief Justice, I think that when there is an effective policy in place, it has the capacity to remove reasonable fear.

And when an employer can show that it… its policy has all the elements of a good policy, and they’re listed in the EEOC guidance, and that that policy has been effectively disseminated to everyone, and that it’s clearly understood that the… the employer takes this seriously, there’s a complaint mechanism, then the plaintiff would have to show, through case specific evidence, that notwithstanding such an effective policy, she nonetheless reasonably feared adverse employment consequences if she resisted or complained.

I think that–

Anthony M. Kennedy:

–What would you do if you have the model employer, who does everything that they can, but he… there is one bad apple, a supervisor, and he offers a quid pro quo… promotion in exchange for sexual favors, et cetera… is that a completely different case, or is it governed by this same rule?

Irving L. Gornstein:

–That… that is a different case, Mr. Justice… Justice Kennedy.

And in… in that case, we would say that the employer is liable.

And the employer is liable because there the role of supervisory power is clear.

And the employer is liable in that situation.

Now, the reason the employer is liable there is the same reason that an employer is liable when a supervisor fires a black employee because he has a personal aversion to blacks in the work place, notwithstanding anything that the employer might have done to prevent that from happening.

Irving L. Gornstein:

And that’s… that is because, in that case, it’s still the case that the discrimination was made possible by the delegation of power from the employer to the supervisor.

Antonin Scalia:

What if the woman is not… is not fired, because… because she… she yields to the… to the harassment, and provides the sexual favor requested?

Irving L. Gornstein:

We… if it’s… if it’s… if it’s an explicit request–

Antonin Scalia:

Right.

Irving L. Gornstein:

–if it’s an explicit threat of adverse employment consequences–

Antonin Scalia:

Right.

Irving L. Gornstein:

–again, we would say that the employer is liable in that situation, where there’s an invocation of power.

Antonin Scalia:

Now, I… I find that… why is that?

That seems to me very strange.

I mean, so it would make all the difference in this case… let’s assume… let’s assume that… that… that there would otherwise be liability on the basis of employer negligence only.

Let’s assume we were to adopt that rule.

Irving L. Gornstein:

Yes.

Antonin Scalia:

You say, however, that if in this case one of the lifeguards had said, You know, unless you let me continue to abuse you in this fashion, I’m going to assign you to that tower, that life tower… lifesaving tower that doesn’t have a screen on it–

Irving L. Gornstein:

Yes, we are… we are… now we are getting to the–

Antonin Scalia:

–That would be quid pro quo, I guess, right?

Irving L. Gornstein:

–That… that’s correct.

And that’s the–

Antonin Scalia:

And suddenly everything would transform, even though the employer knows nothing about it.

All you have to allege is that he said he was going to send me to this other tower.

And suddenly it becomes a totally different case.

Irving L. Gornstein:

–It does.

And that’s because, in that case–

Antonin Scalia:

I don’t understand why.

Irving L. Gornstein:

–the invocation of power is clear.

And I… I might add that this is the case the Court is essentially is going to have next sitting.

So I’m not sure I want to spend that much time on it.

That is what is at issue in Eller for… for the Court next sitting.

But–

Ruth Bader Ginsburg:

Well, maybe because it’s a little difficult to see where the line is between that kind of case and this kind of case.

I mean, it’s one thing to go off to the tower without any windows; it’s… is it so different to be subjected to this kind of leering and groping and foul mouth every day?

Irving L. Gornstein:

–But the question is Has the… that harassment been made possible by the delegation of power from the employer to the supervisor?

And the line we draw is between those cases in which supervisory power makes it possible and those cases in which the supervisor is simply taking advantage of proximity in the same way that a co worker would.

And the reason that we… we hold employer liable in those situations is… is twofold.

It serves two important Title VII purposes.

First, it provides a greater incentive for employers to root out discrimination from their work places.

And, second, it provides compensation to an innocent employee–

Sandra Day O’Connor:

Well, but in… in situations where the harassment is carried out by the supervisor, but there is no retaliation suggested or in fact imposed by the supervisor, he just does these gross things, but otherwise the… the employment relationship stays the same, why do you say the employer has aided the supervisor in doing it?

Why isn’t it closer to the co employee harassment situation?

Irving L. Gornstein:

–Because, by the delegation of power itself, and by the absence of an effective policy providing the person a way around, there will… there can be a reasonable fear that adverse employment consequences will be imposed.

William H. Rehnquist:

Thank you, Mr. Gornstein.

Mr. Rissetto, we’ll hear from you.

Harry A. Rissetto:

Mr. Chief Justice, may it please the Court–

Hostile environment sexual harassment is seldom within the scope of employment.

It is seldom within the authority that is given to a supervisor.

We believe that the United States Court of Appeals for the Eleventh Circuit properly applied a test, that is essentially a test of negligence, to deal with this situation.

Was–

Ruth Bader Ginsburg:

Is… is firing someone just because of the color of his skin, when the employer has a… a policy against race discrimination, is that within the scope of employment?

Harry A. Rissetto:

–Excuse me, Ms. Justice, I didn’t hear the first part of your question.

Ruth Bader Ginsburg:

You… you had said that this kind of thing can’t be within the scope of employment because no rational employer would sanction… would allow such a thing.

And I said, well, suppose you have a bigot running the personnel office and the employer doesn’t know about it.

And that that person is making decisions strictly on the basis of race.

Surely, not within the scope of employment anymore.

Harry A. Rissetto:

No, that is… that is no longer a case of hostile environment sexual harassment, it is a case of disparate treatment.

I mean, I grew up in a world where most discrimination that occurred was disparate treatment, that people were treated differently because of their gender or their race.

Ruth Bader Ginsburg:

Yes.

But as far as attributing it to the employer, the employer in both cases says that’s certainly not any policy that I authorized.

Harry A. Rissetto:

When… when… when a supervisor takes what Justice Posner, in the Jansen case, called is a company act, the hiring somebody or not hiring somebody, that is an act that’s separate from the motivation of the act.

It is… it is an act that’s an official act of the company.

And if that act is tainted by a discriminatory motive or a discriminatory intent, it’s a violation of Title VII.

It’s always been.

Harry A. Rissetto:

And… and that is the… that is the… at least the fundamental distinction between a quid pro quo situation or a disparate treatment situation on one side, and hostile environment situation on the other.

Antonin Scalia:

I don’t understand–

–But it isn’t because… because, I think, as… as your… your… your friend on the other side indicated, it’s still a quid pro quo.

Even if the person is not fired, but… but yields and… and… and gives the sexual favor demanded, isn’t that still quid pro quo?

Harry A. Rissetto:

That is an unsettled question, since I believe the lower courts are wrestling at the present time as to what a quid pro quo violation is.

At least–

Antonin Scalia:

So you think that… that should make the difference, the… the… the woman who is so intimidated that she yields is… does not get the advantage of the quid pro quo rule, whereas the one who… who is tougher and is fired does?

Harry A. Rissetto:

–Well, there is a… there is a… there are three categories of quid pro quo, one where the person is fired.

That’s a company act.

That is, if I fire somebody because of their gender, that’s a violation of Title VII.

I don’t believe that that principle is in dispute.

Antonin Scalia:

And you’re not arguing that there should be a negligence test for that?

Harry A. Rissetto:

No.

When there is disparate treatment discrimination, it’s not a matter of employer negligence.

John Paul Stevens:

But, Mr. Rissetto, may I just ask this question?

You draw the distinction because the personnel supervisor, in the course of his or her regular responsibilities, hires and fires people.

That’s… but why isn’t it true that the supervisor in this case, in the course of his regular responsibilities, is responsible for the conduct that occurs at the beach?

What’s the difference?

Harry A. Rissetto:

He is responsible for the conduct of… that occurs at the beach.

John Paul Stevens:

Including how the employees deal with one another.

Harry A. Rissetto:

But when that supervisor departs from the scope of the employment–

John Paul Stevens:

Well, but didn’t the personnel officer depart from the scope when he based it on race rather than merit?

Harry A. Rissetto:

–No.

In that case, he made a hiring decision.

John Paul Stevens:

Well, here, this supervisor made a… a… employment decision in the sense it related to how people had to interact with one another under his supervision.

Why isn’t that an employment decision?

Harry A. Rissetto:

But the… in… in… in the case of hostile environment, the… the effect of… on the terms and conditions of employment are as a result of an action that’s outside the scope of the employment by the supervisor.

In a normal disparate treatment case, the effect on the terms and conditions of… of employment, at least in one respect, is as a result of not being hired or being fired or not being promoted.

And that is a fundamental distinction.

And it makes… and it makes the hostile environment cases difficult to fit into the normal disparate treatment mold.

John Paul Stevens:

My question is, why is it a fundamental distinction?

That’s what I don’t quite follow.

Harry A. Rissetto:

I’m sorry?

John Paul Stevens:

My question is, why is it a fundamental distinction?

That’s what I don’t quite follow.

Harry A. Rissetto:

Because in–

John Paul Stevens:

Because in both cases, the… the supervisor is performing his… his or her general official responsibilities, but deviates from company policy.

And you say, in one deviation, is outside the scope of the employment, but the other is not.

Harry A. Rissetto:

–Because in one case there is an employment action that is… that is within the… the supervisor’s authority.

The right to hire and fire is within the supervisor’s authority.

John Paul Stevens:

But so is the right to tell how people behave on the beach.

Harry A. Rissetto:

And this is a case where the supervisor his self… himself or herself… is departing from the scope of that authority.

Sandra Day O’Connor:

Well, but think of the situation where the employer tells the supervisor to run an errand, drive the car downtown to buy supplies for the beach.

And on the way, the employ… the supervisor drives negligently and hits somebody.

Employer liable?

Sure.

Not a frolic of his own.

Harry A. Rissetto:

But if–

Sandra Day O’Connor:

So… so how do you relate what happened here to that concept?

Harry A. Rissetto:

–Because in this particular case, the activities of the supervisor in question were in pursuit of his own personal agenda.

They weren’t… they weren’t carrying out the responsibilities that he had in operating the beach.

Sandra Day O’Connor:

Well, his responsibilities included supervising the employees.

Harry A. Rissetto:

It included supervising the employees.

Sandra Day O’Connor:

Yes.

Harry A. Rissetto:

And… and there is no question that Mr. Terry and Mr. Silverman–

Sandra Day O’Connor:

And he carried it out in a grossly improper fashion.

Harry A. Rissetto:

–Well, I would suggest that there’s a distinction between his supervisory actions and the frolics, or improprieties and misconduct, that he committed outside his supervisory responsibilities.

We would suggest that the record in this case suggests that most of the things that went on that were offensive to the lifeguards at Boca Raton were done outside the normal responsibilities… the regular responsibilities of either Mr. Terry or Mr. Silverman.

Ruth Bader Ginsburg:

No, but I think you’re–

–Would it make a difference if… if one of the other… or both of them… said, I’m going to have my way with you once a week, and everything else is the same, would the employer be reachable more readily than you contend, where there was just groping and leering and foul language?

Harry A. Rissetto:

Well, if… if he says, I’m going to have my way with you once a week, there is legitimately a negative implication in that statement that if I don’t, you’re going to be fired or something bad is going to happen to you.

In that case, you’re on the way over to a… a quid pro quo kind of situation that’s before the Court in Burlington–

Ruth Bader Ginsburg:

Well, why don’t we just concentrate on the act rather than… he doesn’t say, I’m going to fire you.

He’s going to say, you’re here, I’m stronger, once a week.

Harry A. Rissetto:

–Your Honor, I don’t think it would make a difference in the outcome.

It would still be a hostile environment sexual discrimination for the employ… for the supervisor to say that to the employee.

That would… that… that there is… we believe that the–

Ruth Bader Ginsburg:

In other words, if that… if that were a term and condition of her employment imposed by the supervisor, there would still be no liability on the part of the employer?

Harry A. Rissetto:

–Your Honor, at… at the point we’re on in the hypothetical, we’re only a threat that the employer… that the supervisor says to the–

Ruth Bader Ginsburg:

I’m not talking about words, because there were deeds here, too.

Harry A. Rissetto:

–Okay.

Ruth Bader Ginsburg:

They didn’t go that far.

So let’s take this case, where there’s no words, just deeds.

That happens once a week.

And it’s a… she describes it as a term or condition… a condition of her employment.

Would it not be, if that in fact is what her boss… her supervisor did?

Harry A. Rissetto:

If there was… if… if there were no nexus to an employment action, if it was not a condition of her employment, it would… it would fit into the–

Ruth Bader Ginsburg:

Well, that’s the problem.

Is it or is it not?

How do I know?

Or I know the fact that once a week this goes on.

Harry A. Rissetto:

–Well, we know in this case that… that… that there was no evidence in the record that the activities that these… that Silverman and Terry engaged in was anything more than gratuitous.

Ruth Bader Ginsburg:

Well, I’m just trying to find out, as far as the employer’s liability is concerned, which is the issue before us, whether these are differences in degrees or difference in kind, whether it makes any difference.

Harry A. Rissetto:

Well, the degree of grossness or the degree of coarseness, or whether it’s verbal or… or physical, ought not to make an operative difference in the outcome.

In either event, the… the Title VII works best when a regime of communication is… is created, where employees that are the subject of either criminal activity or improper activity or misconduct–

Anthony M. Kennedy:

Well… well, I’m not so sure.

In the case of very gross misconduct of the kind in the hypothetical, in one sense, the employee is… almost has less fear because she knows the employer will stop that.

It’s these… it’s these less offensive, but still gross and vulgar, situations, where she is really concerned that the employer might brush her off or not… not care, not act.

Harry A. Rissetto:

–Well, in this particular case… and it’s difficult to extrapolate from an anecdote… as soon as Miss Ewanchew wrote… wrote the letter, something happened.

An investigation took place, and disciplinary action was taken.

Harry A. Rissetto:

But as… I am not offering that as… as the paradigm example.

What I am offering is… is an argument from policy that suggests that from an employer’s perspective, trying to find out the sexual harassment of the subtle variety that you hypothesized is going on in the work place is nearly impossible.

A lot… if… reading the record in this case–

Ruth Bader Ginsburg:

What is subtle about the behavior that’s described here?

Harry A. Rissetto:

–Well, to the extent that you’re in a room and… and someone grabs a part of your anatomy and… and… and does so secretly, it is difficult for an outsider–

Ruth Bader Ginsburg:

But there was nothing here, as far as I can tell, that was secret.

It was on the beach, right?

Harry A. Rissetto:

–There was… there’s a… there’s a variety of… of anecdotes, some of which… for example, a number of the lifeguards… female lifeguards testified that they weren’t aware that conduct vis a vis other lifeguards was even going on.

Which goes to the obviousness of the… of… of a lot of the activities.

Some of the verbal activity was relatively public among the lifeguards.

David H. Souter:

Is that the nub of your argument, that it is… that it is more difficult for the employer to… to become aware of this kind of harassment than it is for the employer to become aware of racially discriminatory hiring?

Is that the nub of it?

Is that why you… you would… you would call for different treatment of employer liability in those two cases?

Harry A. Rissetto:

That’s part of it, Justice Souter.

I think–

David H. Souter:

What’s the other… what’s the other part?

Harry A. Rissetto:

–The other part of it is that when the employee takes an employment action, hiring somebody or not hiring somebody in a discriminatory fashion, the person taking that ultimate action is acting within the scope of his or her work.

David H. Souter:

No.

But that’s just a matter of definition.

I mean, what you’re saying is the person in your example, who… who fires or hires for a racially discriminatory purpose, is exercising a power that the employer has… has given him.

But you could just as well define it by saying no, the employer has simply given an authority to hire and fire for legitimate reasons.

So it seems to me that that distinction, which you’ve stated several times, is simply a distinction that’s based on an arbitrary definition that… that you are assuming here.

And the real reason, if I understand your argument, is that it’s more difficult for the employer to become aware of the harassment than to become aware of the racial discrimination.

And you… you said a second ago that that is one of your reasons.

My question is Why is it more difficult?

All sorts of hiring decisions are made.

And they may… they may be made very legitimately, even though the… the two parties, the… the supervisor and the person hired or fired are of different races.

How is it easier for the employer in the racial situation to know that something wrong is going on, but not in the harassment situation?

Harry A. Rissetto:

I don’t believe there is a… a distinction in knowledge, particularly with respect to far flung employers, with operations that are run, where hiring decisions are made by supervisors.

I think, as a practical matter, there is a… there is a… a great degree of difficulty in ensuring that personnel decisions are made in a manner that are consistent with Title VII.

Harry A. Rissetto:

However, in… in the case of… of an employer making that decision with somebody acting within the scope of… of its employment, I don’t believe that an employer can define away its Title VII responsibilities by saying, Joe, you can hire these people, but I don’t want you to discriminate against Title VII; and remember, your job only entails hiring within the confines of Title VII.

In that situation, the law of agency is clear, that–

David H. Souter:

Why is the situation any different when we get to sex harassment?

Harry A. Rissetto:

–Because in this particular case, the activity that was engaged in by the individual supervisors had nothing to do with the exercise of their supervisory authority.

David H. Souter:

No.

But you’re saying… your response to my definitional objection was, in effect, it’s… it’s easier to define with reference to the prohibited act in the one case than in the other.

And… and that’s what I don’t understand.

I don’t… I don’t understand why the definitional responsibility and the practical consequences of it are different in the race situation from the sex situation.

Harry A. Rissetto:

Well, I think if you… under the… the historic law of agency, there is a… a premise.

And the premise is that supervisors can act outside the scope of their employment.

And when they do, they’re on their own.

Justice Hand had a bosun’s case, where a drunken bosun beat up a… a sailor–

David H. Souter:

Okay.

And that’s true with respect to improper racial considerations.

It’s true with respect to improper sex considerations.

What’s the difference?

Harry A. Rissetto:

–Well, the difference is that, in… in the case when the supervisor departs from the scope of employment, he’s acting on his own.

And–

William H. Rehnquist:

Well, if… if… if IBM refuses to hire a woman, and thereby violates the prohibition against discrimination based on sex, you don’t need vicarious liability on the part of a supervisor or on the part of the hiring manager.

She tried to get on IBM’s payroll and did not succeed.

So it seems to me you’re not talking about vicarious liability there at all.

You’re talking about liability on the part of the employer directly.

Harry A. Rissetto:

–Yes, because the… but in… in every case of a corporation, the employer is acting through individuals, and the act of the individual is the act of the corporation, unless the… the supervisor departs from the scope of his employment.

If Mr. Terry decided that he was going to begin to steal from the… from the… from the women lifeguards, on… on the… because they were women, and… so disparate treat… disparate action with respect to… on the basis of sex with respect to the women lifeguards.

And he does this stealing.

The question is Is he within the scope of his employment?

Should the employer be automatically liable to the women lifeguards for the theft?

Now, you get back to the question–

Antonin Scalia:

Suppose… suppose I… I’m a hiring officer for a company, and I hire somebody because he’s my son in law.

Am I acting–

Harry A. Rissetto:

–cases Your Honor–

Antonin Scalia:

–Am I… am I acting in the scope of my employment?

Harry A. Rissetto:

–It depends whether or not the… a… the court will find that that’s part of a pattern of not engaging equally… equal employment hiring decisions.

Antonin Scalia:

No, no, no.

Apart from whether… there’s no discrimination.

There’s no Title VII involved.

Harry A. Rissetto:

Okay, no discrimination.

Antonin Scalia:

I’m clearly not acting in the scope of my employment if the only reason I hired a person is because he’s my son in law.

Harry A. Rissetto:

Well, if… if you assume he’s not qual–

Antonin Scalia:

He’s incompetent.

Yes.

But he’s making hiring decisions.

I don’t care if he’s qualified.

I don’t care whether he’s qualified; he’s my son in law.

I mean–

What’s family for?

Right.

[Laughter]

Harry A. Rissetto:

–The act… precisely… the act of hiring is within the scope of his employment.

Why he hires–

Antonin Scalia:

I, m–

Harry A. Rissetto:

–That’s the reason we don’t let them off the hook when they don’t hire somebody because they’re a woman or because they’re black.

Because the act of hiring is within the scope of employment.

John Paul Stevens:

–May I ask another–

Harry A. Rissetto:

Yes.

John Paul Stevens:

–if you could get away from the hiring for a second.

Supposing a… a company… the supervisor has a… the work place has got asbestos in it or it’s dirty or unhealthy or something like that.

And it makes it an undesirable place in which to work, which causes harm to the employee.

Should there be a different standard of liability on the… on the principle there than in… in this particular work environment situation?

Harry A. Rissetto:

Well, in that particular case, there are… are… vicarious liability can flow to the employer by virtue of the conditions–

John Paul Stevens:

But why is it different in that?

Harry A. Rissetto:

–Because it’s a dangerous condition is one of the historic exceptions to… that creates vicarious liability.

The Court had a case 20 years ago involving feces in a… in a food warehouse.

And found–

John Paul Stevens:

Right.

Harry A. Rissetto:

–vicarious derivative liability to the… to the president of the company, who knew nothing about it.

The Court, in its decision, concluded that it was a… that there was a public health… an overriding public health justification for the regulation that created–

John Paul Stevens:

But if there was… it wasn’t… it was not within the public health exception, but just a general dirty place, and squalid… I suppose most of these do come down to health, don’t they?

Harry A. Rissetto:

–Yes.

John Paul Stevens:

But if it’s some… if it’s just simply unpleasant, you’d say you would not… you would not attribute it to the employer in this case?

Harry A. Rissetto:

Well, if it’s noisy, Your Honor… I mean, I… I think–

John Paul Stevens:

Unless which actually caused harm.

But, again, you’re… you’re in the health area.

Harry A. Rissetto:

–Yes.

I’m reluctant to try to an… analogize a hostile environment sexual discrimination–

John Paul Stevens:

What you’re saying is the public interest in avoiding this kind of environment is not as strong as the public interest in protecting the health of the worker?

Harry A. Rissetto:

–Well, from the perspective of the City of Boca Raton, they do have a strong interest in… in… in avoiding this.

I mean, this is a terrible situation.

The… the conduct of these supervisors–

David H. Souter:

Sure.

But what is the interest different here from the interest in the race situation or the interest in the health situation?

Why is it lesser?

That’s… because I think that’s what you’re… at the moment, I think that’s what you’re telling us we should find.

And what are the reasons for finding it?

Harry A. Rissetto:

–Well, hostile environment because of race is a… is… is… is… I would analogize it to this situation.

And… and I think the same–

David H. Souter:

So the standards are to be the same?

Harry A. Rissetto:

–It… yes, in a parallel situation.

If… if these… if the things that happened to these lifeguards happened because they were black or because they were, you know,–

David H. Souter:

Then why don’t you lose?

Harry A. Rissetto:

–We don’t… I’m… Your Honor, I’m suggesting that… that… that there is… at least the lower court decisions do not draw a distinction between a hostile environment situation involving race and one involving sex.

David H. Souter:

All right.

Why is the… why is the necessity different between a hostile environment situation in sex and a hiring/firing decision on race?

Harry A. Rissetto:

Because in a hiring/firing decision because of race, there’s a company action made for which the company is responsible.

David H. Souter:

Yes.

But why?

Harry A. Rissetto:

Why?

I’m sorry–

David H. Souter:

Why do you say it’s not vicarious liability in the one case but it is vicarious liability in the other case?

The President of IBM does not know when the personnel manager in Pasadena, California discriminates on the basis of race any more than he knows that a supervisor is creating or tolerating a hostile environment based on sex… doesn’t know in either case.

Why is the treatment different?

Harry A. Rissetto:

–I’m embarrassed to give you the same answer that I… I gave you before, Your Honor.

I apologize for this.

But in… in… in one case there is a corporate action being taken within the scope of the employment… not hiring or promoting… and–

John Paul Stevens:

May… may I be sure I understood your answer to the comparative, two different kinds of hostile environment, one caused by the kind of situation we have here, and the other caused by a supervisor who doesn’t like African Americans and he puts them all in the corner.

You say the same standard of… of agency liability would apply to both of those cases?

Harry A. Rissetto:

–Yes, that would be the position–

John Paul Stevens:

I see.

Harry A. Rissetto:

–that negligence… the… the employer… in… in a case where the supervisor is not exercising–

John Paul Stevens:

Have we ever–

Harry A. Rissetto:

–and your hypothetical is slightly off–

John Paul Stevens:

–Yes.

Harry A. Rissetto:

–but assuming that it… it was not within the scope of employment and he was not–

John Paul Stevens:

Well, the company has a policy in both cases against sexual harassment on the one kind, and against treating blacks differently than whites.

But the supervisor happens to be a member of the Ku Klux Klan in one case, and he happens to be the lifeguard in this case.

Are they parallel, in terms of agency principles?

Harry A. Rissetto:

–They should be.

But if, in both cases the employer assigns… makes adverse assignments or… or–

John Paul Stevens:

Well, the supervisor does it.

The people in city hall don’t know about it in either case.

Harry A. Rissetto:

–But… but the act of making assignments down in the beach was in the scope of Terry’s employment.

And if Terry’s–

John Paul Stevens:

Well, but the same is true of my… the same is true of my… my black/white case, too.

Harry A. Rissetto:

–They would be parallel.

They would–

John Paul Stevens:

Yes, they would be parallel.

Harry A. Rissetto:

–they would be parallel.

And there’d be… and there would not be liability in the… in the racial discrimination context unless there’s actual knowledge?

For a gratuitous comment made by a supervisor–

John Paul Stevens:

No, no, no, not a gratuitous comment.

A steady, every day policy of making the black secretary sit off in a dark corner.

Harry A. Rissetto:

–Well, but now… that… that’s… I think in the case of the lifeguard and in the case of the… of the secretary–

John Paul Stevens:

Right.

Harry A. Rissetto:

–race and sex, you would have the same outcome.

The employer would be liable in both cases.

Because there–

John Paul Stevens:

Oh, but if you say liable in both cases… but you’re saying in this case your client is not liable.

Harry A. Rissetto:

–Because the distinction is when I make assignments on a discriminatory basis, I’m liable.

When I make gratuitous comments and… and do gross things and make coarse comments to an employee, I am not acting within the scope of… of my employment.

John Paul Stevens:

But… but you–

Harry A. Rissetto:

And that is the fundamental distinction.

John Paul Stevens:

–Well, suppose… so you’d say, in my case, if the hostile environment for the black secretary was partly the assignment, but consisted mostly of racial epithets and the like, then it would be the same case?

Harry A. Rissetto:

Then it would be the same case.

Stephen G. Breyer:

Okay.

Can… can you say what… what harm do you do to the fabric of the law… and I’m not saying you don’t… but what harm do you do if you say the… the policing of the environment, the policing of the work environment for a high level supervisor, is precisely analogous to hiring and firing in respect to a hirer?

And if you do the hiring wrong, even for personal motives, the company is liable because the hiring/firing decision is the company.

And if you do the policing of the environment wrong, your company is liable, because the policing of the environment is a company responsibility.

I think that’s what Justice Stevens and everybody has been trying to get at… I think.

And… and you’re saying, Well, that would be somewhat novel.

But there is an analogy, I take it, in the asbestos area.

Stephen G. Breyer:

And is there other harm that would be occurring if… if… I mean, is… would the law be hurt?

Is that very novel?

Is it contrary to other?

You see what I’m… I’m trying to get a–

Harry A. Rissetto:

We believe the objectives of Title VII would be hurt.

Stephen G. Breyer:

–And that’s because of your policy argument.

And I’ve been think… in my… my… the reaction that I wanted to ask you about that is, is that… in other words, the difficulty of the employer finding out… is that a problem with the liability assessment?

Or is it a problem with the substantive standard?

Harry A. Rissetto:

I–

Stephen G. Breyer:

That is, if you have a tough substantive standard, you risk, let’s say, creating too much tension in the work place.

If you have too relaxed a standard, you risk injuring women or minorities in the work place.

It’s very hard to get the right standard.

But is the policy problem that you’re worried about related to the standard or is it related to this problem of liability?

That’s my whole question.

Harry A. Rissetto:

–I… I think it’s related to the problem of liability, as a practical matter.

And… and… and to speak somewhat cynically for a moment, if… if the law was such that if whatever the… the standard is, the… an employer/supervisor violated the standard, there was automatic liability… if I’m an employee in the work place and a gross comment is made to me, but I’m… you know, I can live with it… but all of a sudden, one day it dawns on me, hey, there may be some money here.

So I let this conduct continue.

I don’t object to it.

I don’t, you know, say, Stop it, to the supervisor doing it to me.

I just go on and on.

And at some point in time, I reach the magic moment.

Either it permeated or pervasive, whatever the standard you want to use.

And I say… and I drop my charge in with the EEOC.

John Paul Stevens:

Then you sue and you recover $1.

[Laughter]

Harry A. Rissetto:

Well, we–

John Paul Stevens:

That’s what happened here.

Harry A. Rissetto:

–this… unfortunate… or fortunately for the City of Boca Raton, this was prior to the amendments in 1991.

Now, we have compensatory damages and… and at least with respect to private employers, you have punitive damages that are available.

Anthony M. Kennedy:

We are going to have to address at… I think, at some point in this case, the constructive notice by reason of… of Gordon’s involvement, and by his failure to report.

Anthony M. Kennedy:

Could you just comment on your friend’s argument in that respect?

Harry A. Rissetto:

Yes.

With respect to Gordon, it’s… we believe that… that the conversations that occurred with Gordon, one, were not complaints, were not made with an expectation that Mr. Gordon would take the matter up.

He communicated back to the people, saying, I’m… it’s not… I’m not going to take it up.

Anthony M. Kennedy:

Is… is one standard whether or not he would have been disciplined for failure to make the report?

Harry A. Rissetto:

Well, I think that the standard is whether he had a duty.

And at least in agency law, one standard would be whether he had a duty to make the report, or was he higher management and can deal with it?

Gordon was no… in no position to deal with Terry.

Terry was–

Anthony M. Kennedy:

It seem… it seemed to me that the… the counsel, in the Petitioner’s brief, made the point, if he had… if Gordon had known that… I think Terry… was stealing money, I assume he probably would have been disciplined by the City for failure to report that.

Maybe I’m wrong.

Harry A. Rissetto:

–Well, Mr. Bender, when he testified, thought that the lifeguards themselves should have reported it to him that this was going on.

He thought that Mr. Gordon should have reported it.

But it… it isn’t… there is nothing in Mr. Gordon… in… in Mr. Gordon’s duties, as the training captain of this… on this beach, that… that requires–

Anthony M. Kennedy:

Well, suppose I… suppose I knew that Gordon would be disciplined for failure to report theft by Terry, even though Gordon is not Terry’s supervisor.

Harry A. Rissetto:

–Yes.

Anthony M. Kennedy:

Would that mean that he should also report this?

Or is there… does he have a different obligation?

Harry A. Rissetto:

No.

I think the obligations would be in tandem.

I don’t believe that–

Anthony M. Kennedy:

So if he has the obligation to report theft, he’d also have the obligation to report sexual harassment?

Harry A. Rissetto:

–I would assume that there would be a presumption that that was correct.

And, you know, without looking at more facts with respect to the duties and responsibilities set out in the regulations and handbooks and training–

Antonin Scalia:

What… what are the duties of supervisors?

I… I would have thought that every employee has the duty to… to… if he’s a loyal employee… to tell his employer about… about violations of law that are occurring.

Harry A. Rissetto:

–Well, there’s an expectation and a hope.

And I think that was evident in Mr. Bender’s testimony.

But I don’t know that there is a duty, a legal duty, that is… that is punishable in some way for failing to make that kind of report.

I mean, particularly–

David H. Souter:

Well, didn’t Mr. Bender… wasn’t he the witness who admitted that Gordon had an obligation to report this?

Harry A. Rissetto:

–Yes, he said, in the same sentence, he said he also though the lifeguards had an obligation to report it, too.

And I… so I think Mr. Bender was speaking optimistically, as a manager speaks about what you would hope that your employees would do in a–

Sandra Day O’Connor:

Mr. Rissetto, what difference does it make in your view, legally, whether the employer has a clear policy about sexual harassment and where to complain and so on, or the lack thereof?

How does that fit in with it?

Harry A. Rissetto:

–I… I think it is relevant to the question of negligence.

I think it’s important to note that we’re back in 1985 with these cases.

And the country’s sensitivity about these matters were–

Sandra Day O’Connor:

Well, today, if an employer has such a policy, then… then is the employer protected or not?

Harry A. Rissetto:

–I… no, I don’t believe the employer is protected.

Sandra Day O’Connor:

How does it–

Harry A. Rissetto:

I think the… the question in all cases is whether he knew or should have known.

And if… if he didn’t know, was the employer playing an ostrich, like… that’s a question of proof that would be presented under a negligence standard.

In this particular case, Ms. Faragher, in 1990, after she had decided to go to law school, had the policy.

Thank you, Your Honor.

If there are no further questions–

William H. Rehnquist:

–Thank you, Mr. Rissetto.

Mr. Amlong, you have 4 minutes remaining.

William R. Amlong:

Thank you, Your Honor.

Justice O’Connor, the… the need for a policy, even back in 1985, is… is exemplified by the knowledge by that time of sexual harassment in the work place.

The EEOC’s policy requiring employers to do something had been on the books since 1980.

There was widespread knowledge about it.

The movie, 9 to 5> [“], people knew sexual harassment was going on.

And the… and the… the problem with the Court of Appeals’ approach is that it discourages persons to come forward and… I’m sorry… it discourages employers from having the kind of policy that will bring these reports to their attention.

As Judge Tjoflat noted in dissent, this rewards ostrich like behavior.

It’s hear no evil, see no evil, pay no lawsuit.

Ruth Bader Ginsburg:

But your position was, even if there was a policy, it would make no difference; there would still be a trial.

William R. Amlong:

Justice Ginsburg, my position is that if there was a policy, it would not make an automatic difference, that… but it would be a factor to be considered.

Now, they had a policy.

They just didn’t tell anybody about it.

William R. Amlong:

And, in fact, the policy said, on the issue of whether or not Mr. Gordon had an obligation to… to report, the policy, which is found at page 267 of the joint appendix, says, in pertinent part, a… speaking about the EEOC guidelines Under the guidelines, an employer is responsible for the actions of its supervisory employees or agents and, in some cases, for the acts of others when the employer or a supervisory employee knows of, or should have known, the behavior.

Now, Mr. Gordon knew of the behavior.

He had actual… actual knowledge.

He did not report it.

The behavior of which he knew, Justice Souter, was of… just like discrimination against African Americans.

It is that… this is not somebody asking for a date.

This is two supervisors, for whatever purpose, engaging in the crudest treatment possible of these two women.

It is not merely a frolic.

It is the same kind of behavior that, were it to have been directed to an African American, were he to have been called these epithets, and were he to have been badgered repeatedly, there would be no question that this was discrimination.

David H. Souter:

Well, your brother… your brother says there would be no liability there.

He… I mean, he’s drawing the distinction, if I understand it, between the hiring/firing distinction, because supervisors, at least, are authorized to hire and fire, and the discrimination, or the harassment situation, in which they are not authorized to harass.

And he says a… a definition of what is or is not within the scope of employment is… is… is subject to legitimate distinctions between those two cases.

What… what do you think of that distinction?

William R. Amlong:

Justice Souter, there is no principal distinction between that kind of discrimination and this kind of discrimination.

David H. Souter:

Well, what about the claim that it’s harder to find out… it’s harder for the upper level employees, the management, to find out about hostile environments than it is for them to find out about discriminatory hiring and firing?

William R. Amlong:

It’s especially hard to find out if there is no policy, and if Robert Gordon does not report it up, number one.

David H. Souter:

All right.

That’s a different… that’s a different argument.

William R. Amlong:

The… it is… I do not expect that a Klansman personnel manager is going to announce Mr. Smith, I’m not hiring you because you’re black.

So it is… it is not that much harder for them to find out.

What we have here is we have Terry and Silverman, through their acts, altering the terms and conditions of the employment.

Thank you.

William H. Rehnquist:

Thank you, Mr. Amlong.

The case is submitted.