Beth Ann FARAGHER, Nancy Ewanchew, Plaintiffs-Appellants-Cross-Appellees, v. CITY OF BOCA RATON, a political subdivision of the State of Florida, Defendant-Appellee-Cross-Appellant, Bill Terry, David Silverman, Defendants-Appellees.
No. 94-4878.
United States Court of Appeals, Eleventh Circuit.
April 15, 1997.
As Amended April 28, 1997*.
Appeals from the United States District Court for the Southern District of Florida.
COX, Circuit Judge:
I. Facts1
Beth Ann Faragher worked as an ocean lifeguard for the City of Boca Raton, Florida (City), in the Parks and Recreation Department‘s Marine Safety Section. The City employed Faragher
The Marine Safety Section was organized according to a clear chain of command. Lifeguards reported to Marine Safety lieutenants, and above them to captains; the captains reported directly to the Chief of the Marine Safety Section, who was directly supervised by the Recreation Superintendent; the Recreation Superintendent reported to the Director of Parks and Recreation, who reported to the City Manager. Lifeguards had little contact with City officials. Marine Safety Headquarters was at the beach—in a remote location, far away from City Hall.
Marine Safety Chief Terry subjected Faragher and another lifeguard, Nancy Ewanchew, to uninvited and offensive touching, and lieutenant Silverman made offensive comments and gestures to both Faragher and Ewanchew. In particular, Faragher testified that over the course of her five years of employment Terry touched her shoulders or waist on a number of occasions, patted her thigh once in April 1990, and slapped her on the rear end. Ewanchew testified
Ewanchew resigned from her position with the City in April of 1989, saying that she was leaving because she had found a better job. Faragher resigned in June of 1990 to attend law school. In April of 1990, Ewanchew wrote a letter to the City‘s Director of Personnel complaining that she and other female lifeguards had been sexually harassed by Terry and Silverman while she was employed by the City. The City did not know about Terry‘s and Silverman‘s conduct until receiving Ewanchew‘s letter. The City then investigated Ewanchew‘s complaint and determined that Terry and Silverman had engaged in some inappropriate conduct. The City reprimanded and disciplined them both.
II. Procedural Background
In 1992, Faragher sued the City, Terry, and Silverman. Faragher sued the City for sexual harassment under Title VII of the Civil Rights Act of 1964,
The district court entered judgment for Faragher on her Title VII claim against the City, awarding her $1 in nominal damages.2 The court held that Terry‘s and Silverman‘s offensive conduct was sufficiently severe and pervasive to alter the conditions of Faragher‘s employment by creating a hostile work environment. The court held that the City was directly liable for Terry‘s and Silverman‘s conduct under agency principles based on Terry‘s and Silverman‘s supervisory authority and the overall workplace structure. In addition, the court held that the City was indirectly liable for Terry‘s and Silverman‘s offensive conduct because the conduct was severe and pervasive and supported “an inference of knowledge, or constructive knowledge, on the part of the City regarding Terry‘s and Silverman‘s sexual harassment.” (R.6-166 at 23.)
Faragher appealed and the City cross appealed. A panel of this court reversed the district court‘s judgment for Faragher on her Title VII sexual harassment claim against the City, but affirmed the district court‘s judgment in all other respects.
III. Issues on Appeal
We address two issues in this opinion:3 First, whether the City may be liable under Title VII for Terry‘s and Silverman‘s hostile environment sexual harassment of Faragher, regardless of its actual or constructive knowledge of that harassment; and second, whether the City knew or should have known of Terry‘s and Silverman‘s hostile environment harassment of Faragher.
IV. Standards of Review
We review the district court‘s finding of fact under the clearly erroneous standard of review. Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). We review the district court‘s conclusions of law and its application of law to facts de novo. Massaro v. Mainlands Section 1 & 2 Civic Ass‘n, Inc., 3 F.3d 1472, 1475 (11th Cir.1993), cert. denied, 513 U.S. 808, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994).
V. Contentions of the Parties
Faragher contends that Terry‘s and Silverman‘s positions as top lifeguard commanders make them prototypical agents of the City. Faragher argues that this status, combined with Terry‘s and Silverman‘s conduct, makes the City liable for hostile environment sexual harassment. In addition, Faragher argues that the harassment was so pervasive that the City should be charged with
The City argues that it cannot be held liable under agency principles for Terry‘s and Silverman‘s conduct because there is no evidence which supports a finding either that Terry and Silverman were acting within the scope of their authority in harassing Faragher, or that they were aided in accomplishing the harassment by the existence of their agency relationships with the City. The City further contends that the evidence is insufficient to support the trial court‘s finding that the City had constructive notice of Terry‘s and Silverman‘s conduct.
VI. Discussion
A. The City is not indirectly liable for Terry‘s and Silverman‘s conduct.
This case requires us to accommodate the Supreme Court‘s mandate in Meritor Savings Bank v. Vinson that federal courts use traditional agency principles when deciding hostile environment sexual harassment cases, but simultaneously “place some limits on the acts of employees for which employers under Title VII are to be held responsible.” 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986).
Because the Eleventh and all other circuits employ agency principles in the realm of hostile environment sexual harassment, this opinion utilizes the language of traditional agency case law. Under this approach, direct liability and indirect liability are distinct concepts and form the only possible bases for an employer‘s liability. An employer is directly liable for hostile environment sexual harassment if it knew, or upon reasonably diligent inquiry should have known, of the harassment and failed to
In contrast, an employer is indirectly, or vicariously, liable for the wrongful conduct of its agent, whether or not the employer knew or should have known about the agent‘s wrongful act. Generally, an employer may be indirectly liable for hostile environment sexual harassment by a superior: (1) if the harassment occurs within the scope of the superior‘s employment; (2) if the employer assigns performance of a non-delegable duty to a supervisor and an employee is injured because of the supervisor‘s failure to carry out that duty; or (3) if there is an agency relationship which aids the supervisor‘s ability or opportunity to harass his subordinate. See Restatement (Second) of Agency § 219(1), (2)(c), (2)(d).
Subsequent to Meritor, the circuits differ on the appropriate test to apply in a hostile work environment case involving sexual harassment of an employee by the employer‘s supervisor. See, e.g., Kauffman v. Allied Signal, 970 F.2d 178, 184 (6th Cir.1992) (holding that the plaintiff must establish that a supervisor‘s harassment
This Circuit has concluded that in a pure hostile environment case, a supervisor‘s harassing conduct is typically outside the
Strict liability is illogical in a pure hostile environment setting. In a hostile environment case, no quid pro quo exists. The supervisor does not act as the company; the supervisor acts outside “the scope of actual or apparent authority to hire, fire, discipline, or promote.”
Steele, 867 F.2d at 1316 (quoting Henson, 682 F.2d at 910). Thus, as Meritor teaches, employers are not automatically liable for hostile environment sexual harassment by their supervisors or employees.
Instead, this circuit has articulated two agency principles under which an employer may be held indirectly,5 or vicariously, liable for hostile environment sexual harassment: (1) when a harasser is acting within the scope of his employment in perpetrating the harassment, see Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1558 (11th Cir.1987) (citing Restatement (Second) of Agency § 219(1));6 and (2) when a harasser is acting outside the scope of his employment, but is aided in accomplishing the harassment by the existence of the agency relationship. Sparks, 830 F.2d at 1559-60 (citing Restatement (Second) of Agency § 219(2)(d)). Faragher‘s claim against the City fails on either
First, neither Terry nor Silverman were acting within the scope of their employment when they perpetrated the harassment. Under well-established common law agency rules, an agent is not acting within the scope of his employment when he is “going on a frolic of his own.” Joel v. Morrison, 6 C. & P. 501, 172 Eng.Rep. 1338 (1834) (first recorded use of this phrase); see also Spencer v. Assurance Co. of America, 39 F.3d 1146, 1149 (11th Cir.1994) (interpreting Florida law). In this scenario, the agent steps outside of his employment to do some act for himself which is not connected to his employer‘s business. See William L. Prosser, § 70 Law of Torts at 461 (4th ed.1982). If the agent has no intention to perform any service for his employer, but instead seeks only to further some personal end, then the act is not within the scope of his employment. See, e.g., Bennett v. United States, 102 F.3d 486, 489 (11th Cir.1996) (holding that victim of accidental shooting in army barracks could not hold the United States liable under Georgia respondeat superior principles because employee had undertaken an act purely personal in nature and thus outside the scope of his employment); Spencer, 39 F.3d at 1150 (holding that in order for an employee‘s conduct to be within the scope of his employment Florida law requires that the conduct (1) must have been the kind for which the employee was employed to perform; (2) must have occurred within the time and space limits of his employment; and (3) must have been activated at least in part by a purpose to serve the employment); Restatement (Second) of Agency § 235; see
In contrast, if it becomes apparent that the act was the agent‘s way of accomplishing some authorized purpose, then the master cannot avoid liability, even if he has given specific, detailed and emphatic instructions to the contrary. See Restatement (Second) of Agency § 230; Prosser, supra, at 461.
The contours of this same analysis have guided courts adjudicating agency issues in intentional tort cases. Generally, an employer is held liable for any intentional tort committed by an agent where the purpose of the tort is wholly or in part to further the employer‘s business. Restatement (Second) of Agency § 245; Prosser, supra, at 464. Once again, however, if the agent acts from purely personal motives, he is usually considered to have departed from his employment and his employer is not liable. Id. at 465.
The harassment here consisted of offensive comments, gestures and touching. However, the nature of Terry‘s and Silverman‘s acts and comments towards Faragher does not support a finding that they were acting within the scope of their employment in subjecting
Second, neither Terry nor Silverman were aided in accomplishing the harassment by the existence of their agency relationship with the City. See Sparks, 830 F.2d at 1559-60 (citing Restatement (Second) of Agency § 219(2)(d)). In one sense, a supervisor is always aided in accomplishing hostile environment sexual harassment by the existence of an agency relationship with his employer because his responsibilities include close proximity to and regular contact with the victim. Gary v. Long, 59 F.3d 1391, 1397 (D.C.Cir.), cert. denied --- U.S. ----, 116 S.Ct. 569, 133 L.Ed.2d 493 (1995). However, the common law rule does not use “aided” in such a broad sense. Rather, the employer is liable only if the harassment is accomplished by an instrumentality of the agency or through conduct associated with the agency status. Id.8
In Sparks, for example, the harasser used the authority delegated to him by the company to assist in the harassment: He repeatedly reminded the victim that he could fire her if she refused his advances. Sparks, 830 F.2d at 1560; see also Steele, 867 F.2d at 1317 (limiting holding of Sparks to situations involving both quid pro quo and hostile environment harassment).
No person threatened to fire or demote Faragher for refusing to accommodate Terry‘s and Silverman‘s harassing overtures. Moreover, the harassment cannot reasonably be viewed as conduct associated with Terry‘s and Silverman‘s status as agents of the City. See supra note 8. And, there is no evidence that either Terry or Silverman made any employment decisions based upon Faragher‘s response to their sexual overtures. See Karibian v. Columbia University, 14 F.3d 773, 780 (2nd Cir.1994) (holding employer liable for hostile environment sexual harassment where supervisor capitalized upon his authority over plaintiff‘s employment to force plaintiff to endure prolonged, violent and demeaning sexual relationship).
Because Terry and Silverman were not acting within the line and scope of their employment in perpetrating the harassment against Faragher, and because Terry and Silverman were not aided in accomplishing the harassment by the existence of any agency relationship with the City, the district court erred in holding the
B. The City is not directly liable for Terry‘s and Silverman‘s harassing conduct.
The district court found that the City had no actual knowledge of the sexual harassment but had constructive knowledge because of the harassment‘s pervasiveness. The question of constructive knowledge is an issue of fact reviewed for clear error. Reich v. Department of Conservation and Natural Resources, State of Ala., 28 F.3d 1076, 1082 (11th Cir.1994).
The City contends that the district court‘s finding that the City had constructive notice of the harassment is clearly erroneous and, therefore, that the City may not be held directly liable for the harassment. Faragher responds that the district court‘s finding that the sexual harassment was severe and pervasive enough to infer the City‘s knowledge is not clearly erroneous.
An employer is directly liable for hostile work environment sexual harassment if the employer knew or should have known of the harassment and failed to take prompt remedial action. Steele, 867 F.2d at 1316; Henson, 682 F.2d at 905. A plaintiff can prove an employer‘s knowledge of harassment by showing she complained to higher management. Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir.1988). The district court found that Faragher did not complain to higher management at the City. While several lifeguards complained to lieutenant Gordon, the district court found that he did not rank as higher management in the City and, therefore, that notice to him should not be imputed to the
A plaintiff also can prove an employer‘s knowledge by showing that the harassment was pervasive enough to charge the employer with constructive knowledge. Huddleston, 845 F.2d at 904; Henson, 682 F.2d at 905. The district court believed that its finding that the conduct was sufficiently severe and pervasive to alter the conditions of Faragher‘s employment “supports an inference of knowledge, or constructive knowledge, on the part of the City regarding Terry‘s and Silverman‘s sexual harassment, making the City [directly] liable for such conduct.” (R.6-166 at 23-24.) According to the court, the pervasiveness analysis applicable to finding that the work environment was abusive is the same as the analysis required to show the employer‘s knowledge.
We agree with the district court that the analyses are the same to the extent that a court must evaluate the totality of the circumstances both in determining whether the work environment was abusive and in determining whether the conduct was pervasive enough to put the employer on notice. But we do not agree with the district court‘s apparent belief that simply because conduct is pervasive enough to create an abusive work environment the employer should be charged with knowledge of the conduct. The question of notice to the employer is distinct from the question of the environment‘s abusiveness. Thus, the district court erred to the
There may be cases in which it is difficult to draw the line where conduct becomes so pervasive that the employer should have known about it. But this is not such a case. The district court expressly found that the City had no knowledge of Terry‘s and Silverman‘s conduct. The district court did not find, nor has Faragher pointed to, any factual basis for concluding that the harassment was so pervasive that the City should have known of their conduct. The evidence suggests that just the opposite is true. The lifeguards were stationed at a remote location and had little contact with City officials. The harassment itself occurred intermittently over a long period of time. Faragher worked for the City mostly on a part-time and summer basis, and the district court‘s holding was premised upon a few, discrete instances of harassment. Another lifeguard, Kelly Evans, was a friend of Faragher‘s, yet the two never discussed sexual harassment and there is no evidence that Ms. Evans was otherwise aware of Terry‘s and Silverman‘s harassing behavior towards Faragher. And, as part of her duties as Recreation Superintendent, Sandy Dioli-Kumm occasionally counseled some of the lifeguards. Ewanchew came to see Dioli-Kumm to discuss work-related issues on several different occasions but never mentioned anything about sexual harassment or offensive words or touching by Terry or Silverman; nor is there
Finally, the district court found that the confined space at the lifeguard headquarters building, along with the disproportionate ratio of female to male lifeguards, were in and of themselves conducive to a sort of camaraderie that might be considered “somewhat boisterous.” Despite this, however, Ewanchew stated that the atmosphere in the locker room was generally respectful among members of a particular shift.
For the above reasons, the district court clearly erred in finding that the City‘s knowledge may be inferred from the fact that the conduct was pervasive enough to create an abusive work environment.11 Thus, because there was no basis for imputing knowledge of the harassment to the City, and the district court having found that the City had no actual knowledge of the harassment, we hold that the City is not directly liable for Terry‘s and Silverman‘s harassment of Faragher.
VII. Conclusion
We reverse the district court‘s judgment for Faragher on her Title VII sexual harassment claim against the City. In all other respects we affirm the district court‘s judgment.
AFFIRMED in part; REVERSED in part.
BARKETT, Circuit Judge, dissenting in part and concurring in
The question posed in this case explores the circumstances under which an employer can be liable for a supervisor-created hostile environment of sexual harassment. I believe the majority errs in concluding that the city is not liable under the circumstances presented here and misapplies the law in doing so. First, I believe that the majority fails to give appropriate consideration to the responsibility of an employer for the acts of its agents under traditional agency principles, and essentially limits liability to only employers who “knew or should have known” of the hostile environment. Second, even though the majority says that an employer‘s liability can be based on only constructive knowledge, its analysis effectively requires actual knowledge “of high city officials“—a test at odds with traditional principles of “imputed” corporate knowledge.1
In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), although the Supreme Court declined to extend strict liability to hostile environment sexual harassment, it likewise rejected rules which would insulate employers from liability absent actual or constructive notice. Instead, it simply directed courts to look to traditional agency principals to assess an employer‘s liability for hostile environment sexual harassment. Id. at 72-73, 106 S.Ct. at 2408.2 As does the majority, I will
“Direct Liability”3
The majority acknowledges employer liability for supervisor-created hostile environment sexual harassment if the employer knew or should have known of the harassment and failed to take prompt remedial action. Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1512 (11th Cir.1989). Under our case law, an inference of constructive knowledge on the part of the employer can be supported by a finding of pervasive harassment. Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir.1988) (explaining that “[p]laintiff can show that the employer had knowledge by “demonstrating that the harassment was so pervasive that an inference of constructive knowledge arises’ “); Vance, 863 F.2d at 1512 (stating that a plaintiff “can prove that the employer knew of the harassment by showing ... that the harassment was pervasive enough to charge the employer with constructive knowledge“).
After a non-jury trial, the district court in this case found that Terry‘s and Silverman‘s conduct was “sufficiently severe or pervasive” to constitute hostile environment sexual harassment. The court then ruled that “[t]his finding of pervasiveness supports an inference of knowledge, or constructive knowledge, on the part of the City regarding Terry‘s and Silverman‘s sexual harassment....” The determination of constructive notice is based on factual findings which this court will not overturn unless they are clearly erroneous. See Reich v. Dep‘t of Conservation and Natural Resources, 28 F.3d 1076, (11th Cir.1994) (citing Lewis v. Federal Prison Indus., Inc., 786 F.2d 1537, 1543-45 (11th Cir.1986) (reversing as clearly erroneous a district court‘s finding with respect to whether management knew or should have known that remedial action taken to eliminate age discrimination was ineffective)); Vance, 863 F.2d at 1512 (referring to the issue of constructive knowledge of sexual harassment as a “factual
The majority also purports to find legal error: “... [S]imply because conduct is pervasive enough to create an abusive work environment an employer should [not] be charged with knowledge of the conduct. The question of notice to the employer is distinct from the question of the environment‘s abusiveness. Thus the district court erred to the extent that it conflated the two inquiries.” Majority Op. at ---- - ----. However, there is no support in either logic or the law for such a proposition. The majority can cite to no case which holds that the same level of pervasiveness cannot support the same finding of a hostile environment and constructive notice. In fact, Vance states, “Just as the determination of whether conduct is sufficiently ‘severe and pervasive’ to constitute actionable harassment requires evaluation of the totality of the circumstances, the fact finder [in determining constructive knowledge] must examine the evidence in the same manner. Again, the egregiousness, as well as the number of the incidents, is plainly relevant.” Id. at 1513. Moreover, the majority seems to collapse the two distinct inquiries of actual knowledge and constructive knowledge into one, effectively requiring actual knowledge before imposing liability. For example, in rejecting the district court‘s finding of constructive notice the majority notes that “the City had no knowledge” of Terry‘s and Silverman‘s conduct; that there was no “factual basis for concluding that the City should have known of their conduct“; that
For an employer to be charged with knowledge, it is clearly not necessary for the head of the company, its president, or the chairman of the board to have known of the harassment. Indeed, generally the ultimate head or governing board does not have actual knowledge of the action. The very point of ascribing knowledge on a constructive basis is to recognize that liability can be imputed even when the employer has not been “told,” i.e., even when there is no actual knowledge. The relevant inquiry for constructive knowledge is what the employer should have known in the exercise of reasonable care. Hirschfeld v. New Mexico Corrections Dep‘t., 916 F.2d 572, 577 (10th Cir.1990). Thus, an employer cannot insulate itself from liability by abandoning its employees in a remote location to be supervised by someone who makes their work lives miserable by offensive touching and an atmosphere of sexually offensive comments, suggestions and innuendo.
Terry was the Chief and supervisor of the lifeguard station at which Faragher worked. He clearly had the notice necessary to impute knowledge, and therefore liability, to the City. Under the circumstances presented here, the district court, after hearing and evaluating the evidence, correctly applied the law to the facts of this case and did not commit clear error in finding that the
“Indirect Liability ”4
I also think the majority errs in effectively confining liability to instances where an employer has actual or constructive knowledge. The very purpose of agency is to establish an employer‘s liability specifically for acts of which it has no knowledge. As Justice Joseph Story explains, a principal
is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances, or misfeasances, and omissions of duty, of his agent, in the course of his employment, although the principal did not authorize, or justify, or participate in, or, indeed, know of such misconduct, or even if he forbade the acts, or disapproved of them.
Joseph Story, Commentaries on the Law of Agency § 452, at 536-37 (5th ed. 1857). This rule of holding a principal liable for the acts of its agent is based on “the consideration that it is the principal who makes it possible for the agent to inflict the injury.” 3 Am.Jur.2d Agency § 270 (1986). The record here establishes that Terry and Silverman were agents of the City acting within the scope of their employment 5 and were aided in accomplishing the harassment by the existence of an agency
The majority erroneously assumes that because employers rarely, if ever, expressly authorize supervisors to act in a way that would create a sexually hostile environment, harassment by a supervisor would never fall “within the scope of his employment.” The majority erroneously states that “[t]his Circuit has concluded that in a pure hostile environment case, a supervisor‘s harassing conduct is typically outside the scope of his employment.” Majority Op. at ----. However, the language from Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir.1989) that the majority cites in support of this proposition merely reiterates Meritor ‘s rule against applying strict liability in hostile environment harassment cases. To the extent that the majority relies on cases from other circuits for the holding that harassment constitutes behavior outside the scope of employment,7 such cases serve as poor guides since they misconstrue the agency law to which Meritor directs us. The Restatement clearly states that “an act, although forbidden, or done in a forbidden manner, may be within the scope of employment.” Restatement § 230. The proper inquiry in determining if the agent‘s actions are “within the scope of employment” is not whether the objectionable conduct was
Indeed, I believe that hostile environment sexual harassment is analogous to the Restatement‘s well-known paradigm, which explains that “a chauffeur, driving on an errand for his master, who knowingly drives on the left-hand side of the street or exceeds the speed limit, is still acting within the scope of employment.” Restatement § 231 cmt. a. The act of speeding has not been authorized by the employer, but the journey has clearly been undertaken within the scope of the chauffeur‘s employment. Likewise, a pervasively hostile work environment of sexual harassment is never (one would hope) authorized, but the supervisor
Moreover, “[a]n act may be within the scope of employment although consciously criminal or tortious.” Restatement § 231; see also, Lyon v. Carey, 533 F.2d 649 (D.C.Cir.1976) (employer liable where delivery person raped a woman to whom he was delivering furniture); Ira S. Bushey & Sons. Inc.v. United States, 398 F.2d 167 (2d Cir.1968) (government liable where drunken
Notwithstanding these well-established principles, the majority writes that an act is not within the scope of employment where “the agent has no intention to perform any service for his employer, but instead seeks only to further some personal end.” Majority Op. at ----. In support of this proposition, the majority cites Bennett v. United States, 102 F.3d 486 (11th Cir.1996) which involved an off-duty soldier who accidentally shot a civilian with a privately owned handgun while socially visiting another soldier in the Army barracks. Id. at 487. This Court stated that the soldier‘s activities on the evening of the shooting “were unrelated to any employment relationship with the military, and were not undertaken to further his employer‘s business.” Id. at 494. This conclusion, however, rested on facts very different from those before us. In Bennett, there was no dispute that the soldier was off-duty, and was visiting the barracks “for purely personal reasons unrelated to his responsibilities as a soldier,” which failed “to bear even the faintest connection with his duties as an employee of the United States Army.” Id. at 490. Terry‘s and Silverman‘s harassment took place during work hours and at the work place. Most importantly, the soldier in Bennett was not performing any act on behalf of his employer when the shooting occurred, nor
The majority‘s use of Spencer v. Assurance Co. of America, 39 F.3d 1146 (11th Cir.1994), is also inapposite. In Spencer this Court found that an employee, hired for road-paving, was not acting within the scope of employment when he committed an intentional battery while fighting “to protect his sister.” There was nothing in the fight relating to the employee‘s work or the manner in which he was instructed to perform it. Indeed, the Court specifically recognized that
“this case lacks a sufficient nexus between the employee‘s job and his battery of another to raise even a jury question as to the scope of employment issue.” Id. at 1149. The Court explicitly recognized that “under special circumstances, an employee‘s intentional battery of another may be said to have occurred within the employee‘s scope of employment.” See, e.g., Forster v. Red Top Sedan Service, Inc., 257 So.2d 95 (Fla. 3d DCA 1972) (directed verdict in favor of employer reversed where employee bus driver forced plaintiff‘s car off the road and then assaulted and battered the car‘s occupants after plaintiff allegedly delayed the employee from performing his job-related duties); Columbia by the Sea, Inc. v. Petty, 157 So.2d 190 (Fla. 2d DCA 1963) (jury question created as to the scope of employment question when maitre d’ struck a customer after customer failed to pay his bill and called maitre d’ a “bastard“).
The majority also cites to Restatement §§ 235 and 236, arguing that in order to hold the employer liable, the employee must have intended to “serve the interests” of the employer. However, this
Alternatively, I believe the City is liable in this case under § 219(2)(d), which holds a principal liable for the acts of an agent when the agent is aided in accomplishing the tort by the existence of the agency relationship. See Restatement § 219(2)(d). As with analysis under § 219(1), proper application of § 219(2)(d) requires courts to closely scrutinize the power structure within the workplace to determine the extent to which the particular agency relationship has empowered the supervisor to use or abuse his position to accomplish the harassment. See Vance, 863 F.2d at 1515 (degree of authority and overall structure of the workplace are relevant to agency analysis); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1559 (11th Cir.1987) (adopting E.E.O.C. reasoning that employer‘s delegation of authority empowered supervisor to act). See generally, Oppenheimer, 81 Cornell L.Rev. at 89.
The record reveals that both Terry and Silverman were granted virtually unchecked authority over the work environment. In Terry‘s capacity as Marine Safety Chief, “[he] had the authority to supervise all aspects of the lifeguards’ work assignments, to conduct counseling and oral reprimands and place reports of such
With respect to the City‘s involvement with the lifeguards, the court found that “the lifeguards’ contacts with higher city officials ... were almost non-existent,” and the City admits that, “Marine Safety headquarters was located at the City beach and was thus physically remote from City Hall.” The lifeguards operated under an extensive chain of command, with at least six levels of management between the lifeguards and the City Manager. Most importantly, although the City had a written sexual harassment policy, that policy was never disseminated among Marine Safety Section employees, and in fact, supervisors were never told or made aware of the City‘s sexual harassment policy. Indeed, the district court explicitly found that any procedures that the City had in place to deal with sexual harassment were ineffectual because of the City‘s failure to disseminate those procedures.
In sum, Faragher was completely isolated from the City‘s higher management, and Terry and Silverman directly controlled and
For the foregoing reasons, I would hold the City liable for Terry‘s and Silverman‘s creation of a hostile work environment of sexual harassment.
TJOFLAT, Circuit Judge, concurring in part and dissenting in part:
With the exception of appellant Beth Ann Faragher‘s Title VII claim, I concur in the court‘s disposition of this case. As for that claim, I cannot join the court‘s opinion because I agree with the district court that Faragher‘s proof demonstrated that the City of Boca Raton violated Title VII by requiring her to work in a hostile environment. The court accepts as not clearly erroneous the district court‘s finding that hostility in the form of abusive sexual harassment was a condition of Faragher‘s employment, but it
I.
A.
Title VII of the Civil Rights Act of 1964, as amended, provides that
[i]t shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s race, color, religion, sex, or national origin.
Title VII prohibits as a discriminatory condition of employment the employer‘s creation of an abusive working environment characterized by severe and pervasive sexual harassment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). “A discriminatorily abusive work environment ... can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.” Harris v. Forklift Systems, 510 U.S. 17, 22 (1993). “[D]iscriminatory conduct ... so severe or pervasive that it create[s] a work environment abusive to employees because of their ... gender ... offends Title VII‘s broad rule of workplace equality.” Id., 510 U.S. at 22.
For obvious reasons, most employers strive to maintain order in the workplace. Order enhances efficiency. For employers in the private sector, order enhances the potential for profit. For public employers, order enhances the image of officials who must stand for re-election and bureaucrats who report to them and seek job security. Disorder, the converse of order, prevents the workplace from operating at optimal efficiency. Sexual harassment that is severe and pervasive constitutes disorder. Hence, employers have an extra-legal incentive to prevent it. Title VII, because of the liability and associated costs it may impose, provides employers with an added, legal incentive to prevent this
There is always someone in charge of any workplace. Depending on the character of the business or the number of employees in the workplace, the designation of the person in charge may be explicit. Alternatively, the designation may be tacit. Unless the employer designates someone other than the person in charge of the workplace as the one responsible for maintaining order, I would hold that the person in charge of the workplace has the responsibility of preventing severe and pervasive sexual harassment.2 I would hold further that if the employer delegates to someone else the duty of policing the workplace for sexual harassment, the employer must make the designation unambiguously known to those laboring in the workplace; otherwise the designation would have no legal, or practical, effect.
B.
In the case at hand, the court does not dispute that Terry was in charge of the workplace.
As Chief of the Marine Safety Section, “Terry had the authority to supervise all aspects of the lifeguards’ work
II.
As noted above, the City had a policy against sexual harassment in the workplace. The City, however, did not communicate the policy to the employees of the Marine Safety Section or identify the person to whom complaints of sexual
A.
The court exonerates the City from liability because Faragher did not complain to someone in the Parks and Recreation Department management. The court does so even though Faragher had not been told to whom she should complain. An employer reading the court‘s opinion may conclude that it, like the City of Boca Raton, can escape Title VII liability by having a policy against sexual harassment but concealing from its employees the identity of the person to whom claims are to be made. Because such concealment would have the potential for reducing claims of sexual harassment, and thus the cost of doing business, an employer might choose to follow the City‘s footsteps. The employer‘s other alternative, of course, would be to identify the person to whom complaints are to be made and to have an efficient mechanism for investigating them and taking curative measures when necessary. No system is perfect, however. Thus, an employer with a model system in place cannot render itself immune from claims. In weighing the costs of the two alternatives, an employer may opt for the course the City took in
B.
To the extent that the court‘s opinion induces employers to conceal the identity of the person to whom complaints of sexual harassment are made, the opinion places an undue burden on employees who suffer such harassment. Under my approach, if the employee is not informed of the identity of the person to whom complaints are to be made, the employee would simply turn to the person in charge of the workplace. Under the court‘s approach, the employee must guess to which of the employer‘s agents or employees a complaint should be lodged. Depending on the circumstances, this could be risky business. Among other things, the employee might err in selecting the person to whom to complain, in which case her complaint could go for naught.4 Faced with this uncertainty of outcome, the employee might forego complaining and either suffer the harassment or terminate her employment.
C.
The scenarios depicted in subparts A and B above, which I submit are entirely plausible, will in time breed disrespect for the law. Although I am sure that the court does not intend such a result, I contend that the result is likely. For employers,
ANDERSON, Circuit Judge, concurring in part and dissenting in part:
With respect to Faragher‘s Title VII sexual harassment claim against the City, I agree with Judge Barkett that the district court should be affirmed. I agree with much of what is said in Judge Barkett‘s opinion. I agree with Judge Barkett that the City was appropriately found liable pursuant to the theory of “direct liability.” In addition to the facts pointed out by Judge Barkett relating to the severity and pervasiveness of the conduct constituting a hostile environment, I would rely upon the testimony regarding the intermediate supervisor, Gordon. When plaintiffs complained to him, he indicated that the City did not care. I think this evidence of the City‘s lack of concern also supports the district court‘s finding of constructive notice.
I also agree with Judge Barkett that the City could be liable under a theory of “indirect liability,” i.e., pursuant to the agency principles upon which our previous hostile environment cases have relied. I need not decide the threshold level of authority which a supervisor must possess in order to impose liability on the employer under these principles. For example, I need not decide that every supervisor with some authority relating to personnel can