Employment Litigation · Primary-source case analysis

Faragher: Employer Liability for Supervisor Harassment and the Affirmative Defense

By Aneeta Mishra and Timothy Chan

Published April 27, 2026

Faragher establishes the agency-based framework for employer responsibility when supervisors misuse delegated authority to create a sexually hostile workplace.

Lifeguard supervisors created a hostile environment

Beth Ann Faragher alleged repeated sexual comments, touching, and propositions by supervisors. The city had a policy but did not disseminate it effectively to the beach employees or monitor the supervisors.

Supervisory authority supports vicarious liability

When harassment culminates in a tangible employment action, the employer is strictly liable. Without such an action, the employer may invoke an affirmative defense.

The defense has two necessary elements

The employer must prove reasonable care to prevent and promptly correct harassment and that the employee unreasonably failed to use preventive or corrective opportunities. A paper policy alone may not establish reasonable care.

Disposition

The Court held the city liable and reinstated the district court judgment. The companion Ellerth decision announced the same basic framework.

Key takeaways

• Determine whether a tangible employment action occurred.
• Audit policy distribution, training, reporting, and response.
• Assess whether the employee’s nonuse of procedures was unreasonable.
• Examine practical supervisory authority, not titles alone.