Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)

Background Facts: Kimberly Ellerth, the respondent, was employed as a salesperson by Burlington. During her employment, she alleges that she was subjected to constant sexual harassment by a supervisor stationed in another office He constantly told her she wasn’t “loose enough,” and that if she didn’t, he could make her life very hard at the company. He also told her he wasn’t sure he wanted to give her a promotion because she wasn’t “loose enough.” These mentions of not being loose were accompanied by other offensive remarks and comments that could be construed as threats to deny her tangible job benefits. She quit the company without informing anyone of the conduct, but then filed suit after she had left the company alleging that Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII.

Procedural Information: The District Court granted summary judgment to Burlington. The Court of Appeals en banc reversed. Because there were eight different opinions in this decision, the Supreme Court granted certiorari.

Issue: Is an employer subject to vicarious liability when a supervisor creates a hostile work environment, accompanied by illicit threats on terms and conditions of the employee’s employment, based on sex, but does not fulfill the threat?

Decision: Yes, however the Court adopted a new approach to the analysis of such cases based on the concept of a tangible employment action and other considerations.

Reasoning: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate authority over the employee. The employer is, however, able to raise an affirmative defense if no tangible employment action was taken. If a tangible employment action is taken, no affirmative defense is available.

Concurrence or Dissent: None

Case Briefing Assignment

Cintas Corp v. NLRB, 482 F.3d 463 (D.C. Cir. 2007).

I have uploaded a sample brief of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). You may look up this case by Googling the citation “524 U.S. 742” (Google Scholar works best). You can then see how a very lengthy case is summarized in a few paragraphs in a brief. For purposes of the Cintas assignment, all I need to see is what is listed on slide 11 of the first set of PowerPoints. Also, please note that the “Decision” item includes not only stating who won, but also how the court reached its decision – its reasoning. The court’s reasoning is probably the most important part of the brief because that is what we use to inform us as to how the court will rule when a case with a similar set of facts is presented to the court. One page is all it should take – perhaps a page and a half if you feel you need it.

Please understand that the Cintas case is edited – that is what is being signaled by “* * *” and by the bracketed item at the end of the case about the concurrence being omitted. It is not intended for you to find the unedited version of the case. Please work with the case in the book. If something is missing that you need for a complete brief, simply state that it is missing. Part of the intention of the exercise is to get you acquainted with the fact that these cases are edited. That is done because these cases frequently contain matters that were decided that have no relevance to the field of collective bargaining and it would be a waste of space in the book, and of the student’s time, to include them.

Please note that once I gave the complete citation for the Cintas case (always give the complete citation in proper form when you first cite the case, italicizing the caption – names of the parties – only), I then used an italicized abbreviation for the case when I subsequently referenced it. You may do this in your writings for this course as well. Just be sure to pick an obvious abbreviation that will distinguish the case. An example of a bad choice would probably be NLRB, in a course such as this, because many cases involve the NLRB as a party, whereas Cintas is far more unique. Another way to signal what you are doing for the abbreviated reference is by doing this: Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (hereinafter Ellerth). One more tidbit to keep in mind is that if Ellerth (the person) is discussed in your writing, then there is no italicization. The italics signal that you are discussing Ellerth (the case). For example, you might say, “The Ellerth court believed that Ellerth should have done more to avoid the difficult situation.”