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On June 26, 1998, the Supreme Court of the United States found the City of Boca Raton, Florida, to be vicariously liable for the sexual harassment of former city lifeguard Beth Ann Faragher by her immediate supervisors, Bill Terry and David Silverman.

The case was originally decided in favor of Faragher by the United States District Court for the Southern District of Florida (864 F.Supp. 1552), but was reversed in part by the Court of Appeals for the Eleventh Circuit (111 F.3d 1530).

Faragher brought this suit under Title VII of the Civil Rights Act of 1964 (§703 (a)(1), 42 U.S.C.A. §2000e-2(a)(1)), alleging that Terry and Silverman created a "sexually hostile atmosphere" at work by degrading her and the other female lifeguards with "uninvited and offensive touching" and by making vulgar and offensive remarks about women. The District Court concluded that this conduct constituted an abusive and discriminatory working environment. The District Court also felt that the conduct of Terry and Silverman was so pervasive that the City reasonably should have known about the conduct, or the possibility of such conduct, and was therefore vicariously liable for the conduct of its employees.

The Court of Appeals agreed that this was a discriminatory working environment, but found that the City could not be held liable for the actions of two employees acting out of the scope of their employment. The Court based its decision on R(2d) of Agency §219(2)(d), which provides that an employer "is not subject to liability for the torts of his servants acting outside the scope of their employment unless...the servant...was aided in accomplishing the tort by the existence of the agency relation." The Supreme Court, headed by Justice Souter, viewed it differently.

In the Supreme Court opinion, Justice Souter concluded that an employer is vicariously liable for discriminatory acts of a supervisor, subject to an affirmative defense that analyzes the reasonableness of the employer's conduct, as well as that of the plaintiff. In other words, upon an analysis of the conduct of both the employer and the employee, if the employer can show that they took sufficient steps to prevent such conduct from occurring, or that the employer reasonably should not have known about such conduct, they will not be liable for the actions of third parties.

The Court analyzed the conduct of all of the parties involved and concluded that this affirmative defense did not apply. Among the reasons for this conclusion was the fact that the City had a sexual harassment policy in place for five of the six years that Faragher worked as a lifeguard in Boca Raton (and revised it in 1990); but many lifeguards, including Terry and Silverman, were never made aware of the policy. If the City had gone to the trouble of producing and revising such a policy, at the very least it should have to disseminated it properly.

Also, Faragher told her third immediate supervisor, Robert Gordon, of the harassment, but he did not report it, or question the other two supervisors. The Court determined that this added up to knowledge or at least constructive knowledge of the conduct.

The Court also based its decision in part on the notion that an employer can reasonably anticipate the possibility of such conduct taking place in the workplace. Furthermore, the City made no effort to keep track of the supervisors' conduct. This fact combined with the City's failure to disseminate its sexual harassment policy effectively, helped Justice Souter to conclude that the City did not exercise reasonable care to prevent the harassment of Faragher and her colleagues.

In the sports industry prior decisions like Doe v. Taylor Independent School District (15 F.3d 443), have put college athletic administrators on notice that they should take all necessary precautions, including the implementation of sexual harassment policies, to prevent this type of behavior from occurring on campus and in the locker rooms.

In professional athletics, management should make sure that sexual harassment policies are in place and that all employees are made aware of them. This decision presents an even stronger case for the need to have a properly disseminated sexual harassment policy in place to limit liability of the university, athletic department or professional team.

Furthermore, most other sexual harassment cases have been brought under 42 U.S.C. § 1983 or Title IX. This decision provides another option for victims of sexual harassment to seek remedies. While Title VII does not explicitly protect against sexual harassment in the workplace, this Supreme Court decision solidifies the necessity of an employer taking steps toward preventing this type of behavior from occurring in the workplace.

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