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case, the court stated that neither Terry nor
Silverman threatened to fire Faragher or demote her so their agency relationship did not "facilitate their harassment." "The court reviewed the record and found no adequate factual basis to conclude that the harassment was so pervasive that the City should have known of it, relying on the facts that the harassment occurred intermittently, over a long period of time, and at a remote location." The court felt that if this was such a serious issue taking place at the workplace that these lifeguards, such as Faragher herself, should have brought it to the City's attention earlier.
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speaking about female matters. Faragher was not the only woman that was being spoken to this way, in fact another lifeguard, Nancy
Ewanchew, had brought it to the City's Personnel Director in an effort to put a stop to the way they were being spoken to, but the taunting did not stop. However, a major factor held against Faragher was if this problem had been going on for a while, then it should have been brought to the City's attention earlier.
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The Court noted that "Terry and
Silverman were acting outside of the scope of their employment and solely to further their own personal needs." The Eleventh Circuit had stated that the supervisors' relationship with the City did not assist in why they were treating their co-workers this way. In this
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concluded that the supervisors' conduct was discriminatory harassment sufficiently serious to alter the conditions of
Faragher's employment and constitute an abusive working environment." The complaint contained specific allegations that Terry once said that he would never promote a woman to the rank
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Faragher stated that from time to time, Terry would repeatedly touch the female lifeguards without being invited to do so, and in areas that should not be touched without being invited. Silverman, the other supervisor would make frequent vulgar slurs to the females, such as referencing oral sex and
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to keep the workers in their place while they make offensive statements. The Court Of
Appeals rejected liability on the City's behalf and that the employer is not liable for what their employees do. The City feels that they should not be held responsible for what the employees did at the workplace.
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resigning her position. In 1992, Beth Ann
Faragher brought to the city's attention that her supervisors, Bill Terry and David Silverman, had created a "sexually hostile atmosphere" at work and there was constant offensive touching which was not invited. The two supervisors would also speak about
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amounting to employment discrimination. The court held that "an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of a plaintiff victim."
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delivered the opinion of the Court. The Court considered the interaction between prior sexual harassment cases and the
Restatement of Agency, and found that the City is responsible for the employer's actions based on Title VII, subject to an affirmative defense.
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of lieutenant, and that
Silverman had said to Faragher, "Date me or clean the toilets for a year." Faragher states that there were many times these two supervisors had said things to her and other female lifeguards, and other lifeguards agreed.
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The court debated that since the victim did not receive any harm then the employer should not be held responsible for the actions of their employees. However, Faragher stated that she was working for the City and they should be the ones held
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Faragher stated that in many ways the agency relationship "aided Terry and
Silverman in carrying out their harassment." She argued that these two supervisors abused their
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518:United States employment discrimination case law
290:for the acts of a supervisory employee whose
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448:775 (1998) is available from:
144:(11th Cir. 1997); cert. granted,
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134:(11th Cir. 1996); on rehearing
503:1998 in United States case law
438:Faragher v. City of Boca Raton
386:Faragher v. City of Boca Raton
294:of subordinates has created a
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24:Faragher v. City of Boca Raton
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267:Thomas, joined by Scalia
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78:118 S. Ct. 2275; 141
45:Decided June 26, 1998
43:Argued March 25, 1998
160:On remand, 166 F.3d
119:1994); reversed, 76
528:Harassment case law
508:Boca Raton, Florida
471:Library of Congress
235:Ruth Bader Ginsburg
207:Sandra Day O'Connor
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84:U.S. LEXIS
82:662; 1998
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309:lifeguard
128:11th Cir.
117:S.D. Fla.
80:L. Ed. 2d
60:Citations
436:Text of
421:Faragher
409:Faragher
397:775, 780
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169:Holding
137:en banc
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