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 · Updated October 17, 2026

Decision: Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Decided by the U.S. Supreme Court on June 26, 1998, Faragher explains when an employer is responsible for a supervisor’s sexual harassment. The decision also shows why a policy kept at city hall did not provide a meaningful safeguard for employees working at the beach.

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.

The setting shaped the liability analysis. The lifeguards worked in a clear chain of command at the city beach and had little contact with higher city officials. Their supervisors assigned daily work and oversaw training. Although Boca Raton had adopted a harassment policy, the trial court found that it had not reached the Marine Safety employees. The distinction between a policy existing at city hall and a usable complaint route at the beach was central to the Supreme Court’s review. Faragher, 524 U.S. at 780–83, 808–09.

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 first prong asks whether the city took reasonable steps both to prevent harassment and to respond promptly when it occurred. The second asks whether the employee unreasonably passed up a real chance to use a preventive or corrective route. The employer bears the burden on each prong; a written policy, without effective communication and a practical reporting channel, did not satisfy the first prong on this record.

The Court did not remand to let the city try the defense on this record. The supervisors exercised virtually unchecked day-to-day authority, and the city had neither distributed its policy to the beach staff nor provided a route that assured employees they could bypass the alleged harassers. Those findings defeated the reasonable-care element as a matter of law, without resolving the second element against Faragher. Because the district court had awarded only nominal damages, the Supreme Court found no need to remand for a separate examination of Faragher’s efforts to mitigate damages. Faragher v. City of Boca Raton, 524 U.S. at 807–10.

Disposition

The Court reversed the Eleventh Circuit and remanded for reinstatement of the district court’s judgment against the city. The companion Ellerth decision announced the same basic framework.

Key takeaways

• Identify any concrete job-status decision made through the supervisor’s delegated authority.
• Audit policy distribution, training, reporting, and response.
• Assess whether the employee’s nonuse of procedures was unreasonable.
• Examine practical supervisory authority, not titles alone.

Discussed in: Who Can Be Personally Liable for Workplace Harassment in California?.