Ohio Employers Liability When a Supervisor Creates a Hostile Work Environment

In our view, the trial court has misconstrued when the affirmative defense applies. In Faragher v. City of Boca Raton (1998), 524 U.S. 775, 807, 118 S. Ct. 2275, 141 L. Ed. 2d 662, and Burlington Indus., Inc. v. Ellerth (1998), 524 U.S. 742, 762-63, 118 S. Ct. 2257, 141 L. Ed. 2d 633, the United States Supreme Court focused on whether an employer may be held vicariously liable when a supervisor creates a hostile work environment. In both cases, the Court supported holding an employer vicariously liable for a supervisor's harassing conduct by reference to the "aided by agency relation" principle, as set forth in Section 219(2)(d) of the Restatement of Agency. Faragher, 524 U.S. at 802; Ellerth, 524 U.S. at 760-63. The Court had no difficulty holding an employer liable for the acts of a harassing supervisor when a tangible employment action had been taken by the supervisor. See Ellerth, 524 U.S. at 761-763. "Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her conduct." Id. at 762. As stated by Justice Thomas in his Ellerth dissent, if a supervisor takes an adverse employment action, causing a tangible job detriment, the employer is responsible for the resulting damages "because such actions are company acts that can be performed only by the exercise of specific authority granted by the employer, and thus the supervisor acts as the employer." Id. at 768. Under Faragher and Ellerth, an employer is strictly liable for sexual harassment by the supervisor -- and the affirmative defense is unavailable -- when that supervisor has taken a tangible employment action against the aggrieved employee. A classic example is where a supervisor demotes an employee who rebuffs the supervisor's sexual advances. It is not sufficient that a tangible employment action ultimately occurs; the tangible employment action must be directly linked to the harassment.