Full opinion text
Per Curiam. We have consolidated for decision two appeals reargued en banc on the same day. Although the makeup of the en banc court is slightly different in the two cases, the similarity of the issues has persuaded us to treat the cases together. Unfortunately, a majority of the judges has not converged upon a single rationale for the resolution of all the issues in these eases. The purpose of this per curiam opinion is to describe the cases briefly, to announce the outcomes and indicate the basic lines of agreement and disagreement, to articulate the court’s unanimous view with regard to the disposition of the state law issues, and to refer the reader to the separate, signed opinions that follow. Both cases primarily charge sexual harassment of a female employee by a supervisory employee in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. And in both the plaintiff is appealing from a grant of summary judgment. In Jansen, with which we begin, the plaintiff has additional claims — of retaliation in violation of Title VII and of intentional infliction of emotional distress in violation of the common law of Illinois. The entire court believes that the district judge was right to grant summary judgment for the defendant, Packaging Corporation of America, on both these claims. Some of the alleged acts of retaliation are outside the scope of Jansen’s EEOC charge and are therefore waived. As for the other acts, PCA presented noninvidious reasons for them (for example, that Jansen was assigned a lunch hour— one of the alleged retaliatory acts — in order to assure that the phone in her department would be manned at all times). Since Jansen presented neither evidence that these reasons were mere pretexts nor any other evidence from which retaliatory intent could be inferred, the company was entitled to summary judgment. Dunning v. Simmons Airlines, Inc., 62 F.3d 863, 868-69 (7th Cir.1995). As for Jansen’s claim of intentional infliction of emotional distress, it is preempted by the Illinois Human Rights Act, which confines claims of “civil rights violation” under Illinois law to proceedings under the Act. 775 ILCS 5/8 — 111(C). Sexual harassment is one of the civil rights violations specified in the Act, 775 ILCS 5/2-102(D), and Illinois’ highest court has held therefore that common law tort claims that depend on allegations of sexual harassment may be brought only under the Act. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill.2d 507, 203 Ill.Dec. 454, 457-59, 639 N.E.2d 1273, 1276-78 (1994). Jansen’s common law claim of infliction of emotional distress is supported by the identical factual allegations of her Title VII claims and is therefore preempted. Jansen’s principal claim is of sexual harassment in violation of Title VII. She was hired by PCA as a secretary to A1 Antoni, the manager of the Tooling Services Department of PCA’s Wheeling, Illinois plant. She has presented evidence that he subjected her to undesired and offensive sexual advances. He once intimated to her that he would hold up her raise if she didn’t have sex with him. He held it up for a time, but eventually she did receive it and it was made retroactive. The incident with the raise is the core of her claim that she was subjected to what is known in the case law of sexual harassment under Title VII as “quid pro quo” harassment. In addition, she complains that Antoni’s repeated advances created a hostile working environment. Reargument in Jansen was granted in advance of the release of the panel opinion. Ellerth was employed in marketing in the Chicago office of the mattress-fabric division of Burlington Industries. Theodore Slowik, the division’s vice president for sales and marketing, was not Ellerth’s immediate supervisor, and was based in New York; but he was her supervisor’s supervisor, and as such saw her in the course of business on a regular basis. He made sexual advances to her over a period of a year or so and from time to time intimated that she would not be promoted or otherwise do well at Burlington Industries unless she submitted to his advances. Ellerth argues that Slowik’s conduct placed Burlington Industries in violation of Title VII on both a quid pro quo and a hostile-environment theory. With regard to Jansen’s claim of hostile-environment harassment, the entire court agrees that an employer who is negligent in the hiring, supervision, monitoring, or retention of the plaintiffs supervisor (Antoni) is liable for the supervisor’s sexual harassment and that the plaintiff has submitted enough evidence of PCA’s negligence to create a triable issue, so that summary judgment should not have been granted to PCA. All the judges with the exception of Judges Easterbrook, Rovner, and Wood believe that negligence is the only proper standard of employer liability in cases of hostile-environment sexual harassment even if as here the harasser was a supervisor rather than a coworker of the plaintiff. The view of these judges is set forth in Judge Flaum’s opinion, which is joined by Judges Cummings, Bauer (as to No. 96-1361 (Ellerth)), Cudahy (as to No. 95-3128 (Jansen)) (with the reservations indicated in Judge Cudahy’s separate opinion), Kanne (with the reservations indicated in Judge Kanne’s separate opinion), and Evans; in Chief Judge Posner’s opinion, which is joined by Judge Manion; in Judge Man-ion’s opinion, which is joined by Chief Judge Posner; and in Judge Coffey’s opinion. Judges Easterbrook, Rovner, and Wood, as explained in Judge Easterbrook’s and Judge Wood’s opinions, believe that the proper standard of employer liability in all cases of sexual harassment by a supervisor is respon-deat superior, provided, however, that the harassment was committed by the supervisor in the course of exercising his actual or apparent supervisory responsibilities, was foreseeable, and, subjects the employer to liability under the principles of the applicable state law. The view that the proper standard of care in cases of a supervisor’s creation of a hostile working environment is negligence is thus the law of the circuit, as it is the majority’s view. Judge Flaum’s opinion concludes that Jansen has a viable quid pro quo claim, as do Judges Easterbrook, Rovner, and Wood, though their route to this conclusion is different, as they do not believe that there should be any different standard for an employer’s liability for supervisors’ harassment depending on whether it is hostile-environment harassment or quid pro quo harassment. Chief Judge Posner and Judges Coffey and Manion disagree that Jansen has a viable quid pro quo claim, Chief Judge Posner and Judge Manion because they believe that strict liability for quid pro quo harassment should be limited to “company acts” (such as firing or demoting), as distinct from mere threats, and Judge Coffey because he rejects strict liability in quid pro quo cases and also because he deems Jansen to have waived her quid pro quo claim. In Ellerth’s case, the panel decision, reversing the grant of summary judgment, was issued, 102 F.3d 848 (7th Cir.1996), but, as is our practice, was vacated when rehearing en banc was granted. Judge Wood’s opinion for the panel had held that Ellerth had presented enough evidence both of quid pro quo harassment, and of hostile environment harassment by a supervisory employee, to create triable issues, so that summary judgment should not have been granted to Burlington Industries either. All the judges except Judges Easterbrook, Rovner, and Wood believe that the hostile-environment claim was expressly waived by Ellerth in her briefs to the panel and that the dismissal of this claim should therefore be affirmed. All the judges except Chief Judge Posner and Judges Coffey and Manion believe that Ellerth’s evidence of quid pro quo harassment was sufficient to create a genuine issue of material fact, thus precluding summary judgment, although the routes to this conclusion are different. As noted earlier, Chief Judge Posner and Judge Manion believe that an employer’s liability for quid pro quo harassment should be limited to company acts, as explained in their opinions, as opposed to mere threats by the supervisor, and there were no company acts here. Judge Coffey believes, as also noted earlier, that there is no strict liability in a quid pro quo case and that there is no proof of negligence on the part of Burlington Industries with respect to Slowik’s harassment of Ellerth. The court’s inability to forge a majority position with regard to the proper standard for evaluating an employer's liability for sexual harassment by a supervisory employee means that panels of the court that have similar cases in the future, and the district judges of this circuit on remand in these cases and in similar future cases, will have to determine and be guided by the narrowest grounds for the decisions in these two cases. Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977). Perhaps in some future case this court will be able to forge a majority position; perhaps the Supreme Court will bring order to the chaotic case law in this important field of practice. In the meantime, it is important for the district courts of this circuit to recognize in this welter of opinions that certain views do command a majority within our court: in particular, that the standard for employer liability in cases of hostile-environment sexual harassment by a supervisory employee is negligence, not strict liability, and that liability for quid pro quo harassment is strict even if the supervisor’s threat does not result in a company act. These principles will bind the panels of this court and the district courts of this circuit until the Supreme Court resolves the issues. In accordance with the foregoing discussion, the judgment in Jansen is affirmed with respect to the claims of retaliation and intentional infliction of emotional distress, and is otherwise reversed and remanded; the judgment in Ellerth is affirmed with respect to the claim of hostile-environment harassment but is reversed with respect to the claim of quid pro quo harassment; both cases are remanded to the district court for further proceedings not inconsistent with this opinion. See notes * and ** above. Circuit Judge Ripple did not participate in the consideration or decision of either case. All the other active judges participated in the consideration and decision of both cases.
FLAUM, Circuit Judge, concurring, joined by CUMMINGS, BAUER (in No. 96-1361), CUDAHY (in 95-3128), KANNE (in part), and EVANS, Circuit Judges. Title VII makes it unlawful for any employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). It is well established that this language encompasses a prohibition on sexual harassment in the workplace. Harris v. Forklift Sys., Inc., 510 U.S. 17, 20-22, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64-65, 106 S. Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986). In Meritor the Supreme Court instructed that traditional agency principles should guide employer liability rules in the harassment context. 477 U.S. at 72, 106 S.Ct. at 2408. The Court also cautioned, however, that “such common law principles may not be transferrable in all their particulars to Title VII.” Id. Accordingly, while I believe that agency principles should inform and “limit” this court’s analysis of employer liability, see id., I share Chief Judge Posner’s concern that an undue reliance on the Restatement 2d of Agency (“the Restatement”) could obscure the issues at stake, A frank discussion of the policies underlying this federal imposition of liability upon an employer is necessary. The original objective of Congress in enacting Title VII of the Civil Rights Act was to achieve equality in employment opportunities through the eradication of discriminatory barriers. See Griggs v. Duke Power Co., 401 U.S. 424, 430-31, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). By definition, harassment that alters the terms and conditions of employment — as it must to be actionable, see Meritor, 477 U.S. at 67, 106 S.Ct. at 2405-06 — denies its victims (almost invariably women) an opportunity to succeed equal to that of employees who remain free of such intolerable treatment. To further the goals of the Civil Rights Act, therefore, the imposition of liability under Title VII seeks to deter harassment, and our resolution of this issue, to the fullest extent possible, should be geared toward minimizing its occurrence. See 29 C.F.R. § 1604.11(f) (“Prevention is the best tool for the elimination of sexual harassment.”). As Congress amended Title VII in the Civil Rights Act of 1991 to permit victims to collect compensatory and punitive damages, see Williams v. Banning, 72 F.3d 552, 553 (7th Cir.1995); cf. Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 461 (7th Cir.1990), liability now serves to compensate victims of harassment as well. Yet the goal of ensuring equal employment opportunities for both men and women dictates that deterrence be the foremost objective. I. A. With this premise as my starting point, I turn first to a discussion of the appropriate standard for employer liability in instances of quid pro quo harassment. Quid pro quo harassment occurs where “submission to sexual demands is made a condition of tangible employment benefits.” Dockter, 913 F.2d at 461; see also Nichols v. Frank, 42 F.3d 503, 511 (9th Cir.1994) (quid pro quo occurs where supervisor “conditions a job, a job benefit, or the absence of a job detriment, upon an employee’s acceptance of sexual conduct”). Pre-Meritor, we held in Horn v. Duke, 755 F.2d 599, 603 (7th Cir.1985), that employers were strictly liable for quid pro quo harassment perpetrated by their supervisory employees. Our holding in Horn was premised in part on agency law, see id. at 605, but was prior to Mentor’s explicit directive. Until the panel decision in Ellerth, this court had yet to revisit our holding more fully guided by agency principles. See Baskerville v. Culligan Int’l Co., 50 F.3d 428, 431-32 (7th Cir.1995). In the period since Meritor, seven other circuits have stated that an employer should be held vicariously liable for a supervisor’s quid pro quo harassment under agency principles. See Davis v. City of Sioux City, 115 F.3d 1365, 1367 (8th Cir.1997); Nichols, 42 F.3d at 513-14 (9th Cir.1994) (collecting cases); Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 106-07 (3d Cir.1994); Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir.), cert. denied, 512 U.S. 1213, 114 S.Ct. 2693, 129 L.Ed.2d 824 (1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1127 (10th Cir.1993); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 185-86 (6th Cir.), cert. denied, 506 U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701 (1992); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir.1989). I believe this circuit should follow suit. Agency law supports the imposition of vicarious liability upon employers for supervisory quid pro quo harassment. Section 219(a) of the Restatement provides that an employer is liable for torts of an employee committed while acting within the scope of his Or her employment. We have previously explained that “[t]he deliberate act of an employee acting within the scope of his authority is the act of the employer, for an employer, at least where it is a corporation, acts only through agents.” Shager v. Upjohn Co., 913 F.2d 398, 404 (7th Cir.1990); see also Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 820 (7th Cir.1985), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987); Horn, 755 F.2d at 605. Scope of employment, however, is an amorphous term. While Judge Wood in her examination of the subject would hinge the imposition of liability on “scope of employment” delineated by the “meaningful limitation[s]” of section 228 of the Restatement, see Wood, p. 573, I harbor reservations whether those limitations are indeed instructive. Section 228 appears to have little relevance in the sexual harassment setting. In my judgment, reliance on the Restatement in this instance is the type of formalism that does not get us far in practice. In instances of discrimination, courts have relied upon the concept of delegated authority to flush out the term “scope of employment.” (Agency purists may choose to recognize “delegated authority” as a wholly alternative theory.) When a supervisor wields the authority actually delegated to him to dole out job benefits and detriments in order to condition such employment consequences upon receipt of sexual favors, “the supervisor, by definition, acts as the company.” Steele, 867 F.2d at 1316; see also Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir.1992) (“[T]he supervisor is deemed to act on behalf of the employer when making decisions that affect the [job benefits] of the employee. From the perspective of the employee, the supervisor and the employer merge into a single entity.”); Bouton, 29 F.3d at 106-07 (“Scope of employment liability is often invoked in quid pro quo cases because the supervisor has used his authority over the employee’s job to extort sexual favors”); Nichols, 42 F.3d at 514 (“A harasser is able to grant such job benefits or detriments only because he has ... authority to do so ‘delegated to him by his employer’ _”) (internal citations omitted). It is my belief that liability for sexual harassment should stem from the delegation of authority which can be used to harass. Although we did not formally adopt this “delegated authority” justification in Horn, we recognized and explained the argument: [B]y delegating power to [a supervisor], the “employer” and [the supervisor] essentially merged; as long as the tort complained of was caus.ed by the exercise of this supervisory power, [the supervisor] should be deemed as acting within the scope of his employment, and the employer should be held liable for the tort. 755 F.2d at 605. We have also noted the argument approvingly in several post -Meritor cases, including Skager, where we explained that “a supervisory employee who fires a subordinate is doing the kind of thing that he is authorized to do, and the wrongful intent with which he does it does not carry his behavior so far beyond the orbit of his responsibilities as to excuse the employer.” 913 F.2d at 405; see also Hunter v. Allis-Chalmers Corp. Engine Div., 797 F.2d 1417, 1422 (7th Cir.1986). In sum, because a supervisor would be unable to engage in quid pro quo harassment without the authority and power furnished by the employer, the supervisor’s conduct is properly imputed to the employer. See Bouton, 29 F.3d at 107; see also Meritor, 477 U.S. at 70-71, 106 S.Ct. at 2407-08 (outlining position of EEOC: “where a supervisor exercises the authority actually delegated to him by his employer, by making or threatening to make decisions affecting the employment status of his subordinates, such actions are properly imputed to the employer whose delegation of authority empowered the supervisor to undertake them”). These precedential statements and the Restatement answer only the question of whether agency law supports the imposition of vicarious liability. The question remains whether the imposition of liability on the employer for quid pro quo harassment serves Title VII’s goal of deterring sexual harassment. Implicit in this question is whether a negligence standard better serves the objective of deterrence. The imposition of liability beyond that which is likely to deter sexual harassment serves no constructive purpose and unnecessarily imposes costs on employers, costs that are ultimately passed on. In choosing an appropriate standard of liability, we must ask what it is that we expect employers to do in preventing their employees from engaging in harassment. If courts expect only that companies, once made aware of harassment, will take appropriate i'emedial measures, negligence would appear the appropriate standard. A negligence standard, which asks whether an employer knew or should have known about an employee’s acts of harassment and failed to take appropriate remedial action, see Baskerville, 50 F.3d at 432; Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320 (7th Cir.1992); Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir.1990), necessarily focuses on the steps that employers should take in detecting and subsequently correcting harassment. Underlying a negligence theory is the assumption that employers should not be liable for harassment that they could not be expected to detect. Pursuant to a negligence standard for supervisory harassment, we would presumably require a posted anti-sexual harassment policy, a grievance procedure that allows a complainant to circumvent the supervisory chain of command, and prompt remedial action. See Baskerville, 50 F.3d at 432 (discussing “reasonable” company actions in co-worker harassment situation); see also Meritor, 477 U.S. at 72-73, 106 S.Ct. at 2407-09 (existence of discrimination policy and grievance procedure “relevant” to negligence analysis, but not “necessarily dispositive”). Liability would ensue where the policy or process was inadequate or the handling of an identified harasser was deficient. Regrettably, inherent in this scheme is that an harasser will always possess the opportunity to make at least one quid pro quo demand before an employer would incur liability. While posted policies and grievance procedures are important, I believe that the remedial goals of Title VII demand more. Companies’ efforts to deal with sexual harassment should be systemic and proactive, rather than discrete and reactive. We know that companies can implement grievance procedures and discipline wayward employees; but we also know that companies can hire, train, and promote employees with an eye toward preventing undesirable behavior. In the abstract, a negligence standard conceivably could account for a company’s systemic efforts to promote a workplace free of sexual harassment. Employers who had not done enough to reduce the likelihood of harassment throughout the workplace would be found negligent, even if they had no notice that a specific employee was a harasser. In reality, a negligence standard tends to focus on a company's response to specific instances of harassment. Yet a company’s reasonable response to a known harasser is not necessarily indicative of reasonable efforts to prevent harassment from occurring in the first place. By refusing to allow companies to escape liability, even in the first instance of supervisory quid pro quo harassment, we better serve the goal of deterrence. Chief Judge Posner warns that if the costs of preventing harassment exceed the harm of the harassment (measured in terms of the harassed employees’ recoveries), companies will prefer to pay the occasional judgment rather than to take what he views as unreasonable measures to reform the workplace. See Posner, p. 511. This is an important point, for it suggests that there may be limits beyond which a judicially-fashioned rule, despite its good intentions, will have no power to prevent the discriminatory behavior that Title YII is designed to eradicate. I believe, however, that this concern is premised on an overly pessimistic view of companies’ ability to influence the working environment. Cf. Coffey, p. 546. Companies have available a variety of measures — short of installing video surveillance cameras — through which they can both monitor and impact behavior patterns in the workplace. The costs of preventing future harassment essentially represent an investment in long-term freedom from liability. A company faced with recurring liability for harassment perpetrated by its supervisory employees will have an incentive to foster a culture in which harassment is not tolerated. B. Defining an actionable quid pro quo, of course, is central to the liability standard. A minority of this court is of the opinion, as was the district court in Jansen, that an adverse job consequence is necessary to succeed on a quid pro quo claim (this idea takes the guise of “company act” in Chief Judge Posner’s opinion). See Posner pp. 513-515; Manion, pp. 559-560; Kanne, p. 505. Thus, where the employee submits, or the supervisor turns out to have bluffed, or the harassment is reported before any follow-through on the quid pro quo threat, there is no cause of action under a quid pro quo theory. I cannot agree: a clear and serious quid pro quo threat alters the “terms and conditions” of employment in such a way as to violate Title VII and therefore can constitute an actionable claim even if the threat remains unfulfilled. Principles of agency law support this construction. Making a clear and unambiguous threat of an adverse job consequence is an exercise of the supervisor’s delegated authority, just as actually inflicting the consequence invokes that authority. Included in the supervisor’s delegated power to hire, fire, promote, evaluate is the authority to threaten to use that power if certain conditions or requirements are not satisfied. For example, no one would question that a supervisor was exercising the authority entrusted to him if he informed an employee that the employee would be fired if his work did not improve. Thus, a supervisor’s quid pro quo threat, i.e., a threat that clearly conditions concrete job benefits or detriments on compliance with sexual demands, can be imputed to the employer for purposes of liability. This position has a toehold in the case law. Cf. Posner, p. 514 (citing cases requiring adverse job consequence). It should be noted, that many of the cases stating that an adverse job consequence is an element of a sexual harassment claim were decided prior to the 1991 amendments to the Civil Rights Act, when only equitable relief was available. See, e.g., Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 783 (1st Cir.1990); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1414 (10th Cir.1987); Highlander v. K.F.C. Nat’l Mgmt. Co., 805 F.2d 644, 648 (6th Cir.1986). In that context, it arguably made sense to require some realized adverse action. Now that emotional damage is compensable, the scope of quid pro quo should encompass clear unfulfilled threats that cause serious emotional harm. This construction of an actionable quid pro quo serves Title VII’s goal of deterrence as well. If the aim is to guard against sexual harassment, there is no justification for distinguishing between those cases in which a supervisor carries through on his threats from those cases in which the employee either submits to the supervisor’s demands or in which the supervisor does not act upon his threats. Liability in this situation serves the goal of preventing such abuse from occurring by creating incentives for companies to take steps in hiring and training their supervisors. And while compensation of the victim may be secondary in overall importance to the goal of deterrence, it is undeniable that an employee can be harmed by an unfulfilled quid pro quo. A supervisor’s unambiguous communication that adverse job action is imminent if sexual favors are not forthcoming causes the employee real emotional strife. An employee who does not submit may well undergo anxiety, distress, and loss of productivity regardless of whether the threat is carried out. Further, holding employers responsible for threats that clearly condition tangible job benefits upon the receipt of sexual favors and result in injury, even if no adverse job consequences follow, is consistent with the fact that the employee who submits to such a threat is afforded a remedy. See, e.g., Nichols, 42 F.3d 503; Karibian, 14 F.3d 773. Employees who have the wherewithal to call the supervisor’s “bluff’ and suffer emotionally as a consequence should not have to go uncompensated, nor should a “bluff’ so likely to cause harm go unrecognized by the law. The potential to-succeed against a company on a claim of such an abuse of power is no “windfall.” That said, and cabined by Meritor’s directive, we must recognize an exception to the rule of vicarious liability for unambiguous quid pro quo threats: no liability should result where a victim or plaintiff could not have reasonably believed that it was within the supervisor’s power to affect the conditions of the plaintiffs job. As explained above, where the supervisor is using his actual delegated authority, liability may be imposed on the company. An employer may also be held liable where a supervisor’s quid pro quo threat exceeds his actual authority, but the victim reasonably relies on the supervisor’s threat because of his apparent authority. See Restatement § 219(2)(d). Apparent authority, appropriately described by Judge Wood as “the shadow of actual authority,” see Wood, p. 575, exists only “to the extent that it is reasonable for the third person dealing with the agent to believe that the agent is authorized,” and the third person actually believes the agent to be authorized. Restatement § 8 emt. c. Thus, only where it would be reasonable for a victim of harassment to believe that the authority used to harass had been delegated to the supervisor would liability ensue. II. I now turn to the employer’s liability for a supervisor’s creation of a hostile work environment. The Supreme Court has held that Title VII offers protection for a hostile work environment, defined as a workplace “permeated with ‘discriminatory intimidation, ridicule, and insult’ ... that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Harris, 510 U.S. at 21, 114 S.Ct. at 370 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)). Traditionally, plaintiffs alleging and courts assessing sexual harassment have differentiated between quid pro quo and hostile work environment claims. See Meritor, 477 U.S. at 65, 106 S.Ct. at 240-05; Dockter, 913 F.2d at 458. It could be argued that no principled distinction can be drawn between the two types of harassment in cases where the harassment is perpetrated by a supervisor. In either instance, the supervisor may use the authority delegated to him to harass, for, as Justice Marshall observed in his Meritor concurrence, “[a] supervisor’s responsibilities do not begin and end with the power to hire, fire, and discipline employees, or with the power to recommend such actions. Rather, a supervisor is charged with the day-'to-day supervision of the work environment and with ensuring a safe, productive workplace.” 477 U.S. at 76, 106 S.Ct. at 2410. A minority of this court takes this position and treats sexual harassment under a unified approach informed by the Restatement. See Wood, pp. 566-570. I believe sound reasons exist to distinguish between liability standards for quid pro quo and hostile work environment harassment. My conclusion that harassment of the quid pro quo variety should give rise to employer liability is premised on the belief that companies can effectively communicate to their employees the message that such behavior will not be tolerated. Yet when it comes to the hostile work environment, the courts have been hard pressed even to define the phrase. See Harris, 510 U.S. at 24, 114 S.Ct. at 372 (Scalia, J., concurring) (“ ‘Abusive’ (or ‘hostile,’ which in this context I take to mean the same thing) does not seem to me a very clear’ standard — and I do not think clarity is at all increased by adding the adverb ‘objectively’ or by appealing to a ‘reasonable person’s’ notion of what the vague word means.”); see also id. at 24, 114 S.Ct. at 371 (opinion of the court) (“This is not, and by its nature cannot be, a mathematically precise test ... but we can say that whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”); Baskerville, 50 F.3d at 430 (“It is not a bright, line, obviously, this line between a merely unpleasant working environment on the one hand and a hostile or deeply repugnant one on the other.”); Nichols, 42 F.3d 503, 510 (9th Cir.1994) (“Questions relating to love and sex are among the most difficult for society to answer — in or out of the workplace — and courts are hardly experts in the realm. Still, we must find ways to define sexual harassment.”). Given this definitional difficulty, as well as the variety of views in society as to what constitutes abusiveness, see Nichols, 42 F.3d at 510, I have less confidence in employers’ abilities to communicate a consistent message to their employees regarding what constitutes a hostile work environment. Further, it may not be possible for employers to take the measures necessary to eradicate all arguably offensive conduct from the workplace. Because “ ‘abusiveness’ is to be the test of whether legal harm has been suffered, opening more expansive vistas of litigation,” Harris, 510 U.S. at 24, 114 S.Ct. at 372 (Scalia, J., concurring), I believe that a more judicious approach is called for when it comes to imposing vicarious liability in hostile work environment cases. While agency principles may not “limit” the imposition of a stronger standard of liability in the context of a supervisory hostile work environment, see Wood, p. 573, we should not lose sight of the purpose of imposing liability on supervisors: deterrence. Because a hostile work environment is difficult to define, employers may be unable to send an unambiguous message to employees. I believe the appropriate inquiry in dealing with this conduct remains whether the company has taken due care to prevent harassment and to respond to complaints of harassment. Traditionally, courts have viewed negligence as a close approximation of what the prevention of harm should cost to the company. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947) (Learned Hand’s famous test); see also McCarty v. Pheasant Run, Inc., 826 F.2d 1554 (7th Cir.1987) (collecting cases). By its conception, negligence possesses the flexibility to respond by degree to amorphous or variable harms, such as this one. We observed in Carr v. Allison Gas Turbine, “the greater the [sexual] harassment — the more protracted or egregious, as distinct from isolated ... or ambiguous, it is — the likelier is the employer to know about it or to be blameworthy for failing to discover it.” 32 F.3d 1007, 1009 (internal citations omitted). Given courts’ definitional uncertainty, the cumulative nature of such harassment, and my unwillingness to unfairly penalize an employer, it is best to let the standard of liability remain at negligence. Further, a negligence standard dovetails with the Supreme Court’s construction of hostile environment as “severe and pervasive,” so that, in theory, a harassed employee will not be left without a remedy against a complicit company. In the overwhelming majority of cases, a plaintiff will have no cause of action until, at a minimum, two instances of harassment have accrued. If we assume prompt reporting (i.e., reporting at initial stages of harassment), employer liability will be triggered by the very creation of the hostile environment, as the employer will have allowed the harassment to reach the level of “severe and pervasive.” As explained above, the law should not tolerate “one free” quid pro quo demand. Similarly, the law should not exhibit patience with an employer that permits harassment, once reported, to reach the point where it creates a hostile work environment. This is not to say that we should ignore the reality that when the authority wielded by supervisors over subordinates is used to create a hostile environment, employees may be less likely to report such harassment. While the appropriate standard for both supervisor and co-worker hostile work environment harassment is negligence, I agree with Chief Judge Posner, see Posner, p. 511, that what constitutes due care may not be the same in both eases. Because employers entrust supervisors with authority over other employees who may be abused, harassment by a supervisor is more likely to affect the “terms and conditions of employment.” A heightened duty of care should apply both in terms of the machinery available to employees to complain of harassment and in terms of a company’s duty to investigate and respond effectively to such complaints. See Meritor, 477 U.S. at 73, 106 S.Ct. at 2408 (grievance procedure flawed because it required reporting to supervisor); cf. Carr v. Allison Gas Turbine, 32 F.3d 1007, 1009 (7th Cir.1994) (“It would be unrealistic to expect management to be aware of every impropriety committed by every low-level employee.”). This intensified concern for supervisory abuse is implicit in the concept of negligence and in the Supreme Court’s multi-factor approach, see Harris v. Forklift, 510 U.S. at 22-23, 114 S.Ct. at 371; it is manifest in the Supreme Court’s reaction to Meritor’s grievance procedure. Conscious of the power dynamic between supervisor and supervisee and eager for the realization of Title VII’s goal, I stress it here. III. I conclude with an application of my suggested approach to the facts of these eases, the elaboration of which I leave to the per curiam opinion, Chief Judge Posner, see Pos-ner, at pp. 515-516, Judge Coffey, see Coffey at pp. 546-551, and Judge Wood, see Wood, at pp. 575-578. Under the standards set forth above, Jansen has created genuine issues of material fact as to whether she was subjected to quid pro quo harassment. Although it is by no means a foregone conclusion, a reasonable jury could find that by telling Jansen, “I haven’t forgotten your review, it’s on my desk,” while at the same time patting his crotch, Antoni was conditioning' a favorable performance review, and thus a raise, on Jansen’s submission to his sexual desires. Because this alleged exchange could constitute a meaningful threat, and there is no evidence as yet that Jansen did not view the threat as real, a reasonable jury hOttid conclude that Jansen was subjected to com-pensable quid pro quo harassment. Jansen has also shown enough to get before a jury on her hostile work environment claim. Antoni allegedly subjected Jansen to months of sexually suggestive remarks and inappropriate acts and gestures, that could be considered “severe and pervasive.” There is evidence in the record that PCA should have been aware of Antoni’s campaign of abuse. While Jansen did not complain through official channels initially, she did complain to fellow employees. PCA was on notice that Antoni had allegedly harassed his two previous secretaries. Further, there is evidence that Jansen, like the two previous secretaries, was unaware of - any sexual harassment policy at PCA. A reasonable jury, deliberating under the heightened standard of care applicable in the supervisory context, could find PCA liable. Ellerth, like Jansen, has put forward sufficient evidence to survive summary judgment on her claim of quid pro quo harassment. Her pleadings submitted to the district court, specifically her motion opposing summary judgment together with its accompanying affidavits, while unartful, plainly articulate a basis for a quid pro quo claim. Cf. Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir.1993). This basis is comprised of the following alleged statements made by Slowick to Ellerth. While in the lounge of a hotel where Ellerth had come at Slowick’s request during a business trip, after an evening of allegedly ogling Ellerth, Slowick said, “you know, Kim, I could make your life very hard or very easy at Burlington.” In a later phone conversation, when Ellerth asked permission to undertake a special project, he said, “I don’t have time for you right now, Kim, unless you tell me what you’re wearing.” In a subsequent telephone conversation, Slowick denied her request and then asked her if she were wearing shorter skirts, as that would make her job “a whole heck of a lot easier.” Slowick, at an interview regarding Ellerth’s promotion during which he rubbed Ellerth’s knee, said he had hesitations about promoting her because she was not “loose enough for him.” From these essentially uncontested statements, a x’easonable jury could conclude that Slowick was conditioning or threatening to base “the terms and conditions” of Ellerth’s employment on Ellerth’s catering to Slowick’s sexual desires, and thus subjected to her compensable quid pro quo harassment. Ellerth, while perhaps having shown enough to get before a jury on her hostile work environment claim, has waived the right to do so. Before the original panel, Ellerth argued that liability should be imposed for hostile work environment because Slowick “was aided in accomplishing the tort by the existence of an agency relationship.” See Restatement § 219(2)(d). This argument alone would not prevent recovery under an alternate theory. See 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1219 (1990) (theory of the pleading doctrine). Perhaps overly ambitious, however, Ellerth goes farther in her reply brief for the argument en banc and disavows any argument that liability should be imposed because of employer negligence. See Restatement § 219(2)(b). As I believe liability remains linked to negligence, I join Chief Judge Posner in his assessment that Ellerth has no remedy here. See Posner, at p. 516. . I also second the Chief Judge’s observations regarding the wisdom of looking to state law to derive our agency principles. See Posner, at 506-508. With the potential for significant differences among state interpretations of agency law, Title VII remedies (available only against an employer) would be heavily dependent upon vagaries of regionalism. In light of the history giving rise to the Civil Rights Act, it is hard to imagine that this was an end envisioned by Congress. . Judge Wood appears to conclude that the Eleventh Circuit's recent en banc opinion in Faragher v. City of Boca Raton, 111 F.3d 1530 (11th Cir.1997), abrogates the decision in Steele that employers should be held "strictly liable” for supervisory quid pro quo harassment. See Wood, p. 569. By my reading, Faragher is solely a hostile work environment case and contains no suggestion that Steele is or should be overturned. By the same token, I read the Second Circuit in Karibian as treating quid pro quo harassment and hostile work environment as separate forms of harassment with distinct theories of liability. Cf. Wood, p. 569. . Subsection 228(1) reads, (1) Conduct of a servant is within the scope of employment if, but only if: (a) it is the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, and; (d) if the force is intentionally used by the servant against another, the use of force is not unexpectable by the master. I imagine that subsections (a) and (c) would infrequently be of analytical value in a sexual harassment case, for presumably employers are not in the business of harassment, and it is not conceivable that harassment of an employee will serve the interests of an employer. Moreover, the time and space limitation of subsection (b) has very little meaning in the context of supervisory harassment: the supervisor/subordinate dynamic does not magically dissolve when an employee punches out for the day, for the supervisor resumes a position of authority the very next morning. Subsection (d) I had always understood to be applicable in instances where force is part of the job description (e.g., the proverbial bouncer). Subsection (d) may be transferrable to cases of sexual harassment since, as Judge Easterbrook pointed out in oral argument, statistically speaking, every employer should anticipate harassment. I cannot envision, however, if given the universality of this expectation, how this subsection functions as a “meaningful limitation.” In sum, I am unable to conclude how subsection 228 can be applied with great utility to the bulk of sexual harassment litigation. Nor am I concerned (nor do I seek to make any prediction) that liability will be avoided if the court were to follow Judge Wood’s analysis, as has been charged, see Wood, at 573. I simply am of the view that a command to circumscribe liability through subsection 228 would leave the district courts without sufficient guidance. . Judge Wood argues that a supervisor can harass just as an offensive co-worker might. Wood, p. 567. In my view, a supervisor, by virtue of his position in a hierarchy, always possesses a degree of leverage over a supervisee that does not vary with the nature of harassment. This difference in approach informs my view that a "delegated authority” rationale has more relevance to our analysis of supervisory harassment than the less precise "scope of authority.” Moreover, this distinction might gain added significance in the context of co-worker harassment cases. . The EEOC's "Guidelines on Discrimination Because of Sex" recommend: An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned. 29C.F.R. § 1604.11(f). . Courts have described a valid quid pro quo claim in terms that could encompass a situation based on threats only. See, e.g., Nichols, 42 F.3d at 513 (“[W]e conclude that a supervisor's intertwining of a request for the performance of sexual favors with a discussion of actual or potential job benefits or detriments in a single conversation constitutes quid pro quo sexual harassment.”); Karibian, 14 F.3d at 778 (2d Cir.) (“The relevant inquiry in a quid pro quo case is whether the supervisor has linked tangible job benefits to the acceptance or rejection of sexual advances."); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1559 (11th Cir.1987) (by "making or threatening to make decisions affecting the employment status of his subordinates,” supervisor subjects his employer to strict liability). . As there may exist the potential for some misread of this issue, see Coffey at p. 548 n.37; Manion, at pp. 562-563, I want to underscore that my focus is not any apparent authority to harass, which would be an anomaly to say the least, but the apparent authority to alter the terms and conditions of the workplace that makes harassment possible. . In explaining the EEOC's definition of hostile work environment, the Supreme Court distinguishes hostile work environment from quid pro quo harassment. See Meritor, 477 U.S. at 65, 106 S.Ct. at 2404-05. Judge Wood argues that the Supreme Court did not make this distinction in its discussion of employer liability. See Wood, at 569. In Meritor such a distinction or clarification would not have been necessary as Meritor was resolved as a hostile work environment case. Judge Wood asserts that Meritor involved allegations of quid pro quo sexual harassment. While I am unable to locate these allegations in the Court's opinion, the original complaint may well have contained such allegations, though no reference to the same are found in the district court opinion. See Vinson v. Taylor, No. 78-1793, 1980 WL 100 (D.D.C. Feb. 26, 1980). Moreover, the district court found that the plaintiff "was not required to grant Taylor or any other member of Capital sexual favors as a condition of either her employment or in order to obtain a promotion.” Id. at *7. Thereafter the Court of Appeals considered only the plaintiffs argument under a theory of hostile work environment, see Vinson v. Taylor, 753 F.2d 141, 144-46 (D.C.Cir.1985), as did the Supreme Court. See also Cudahy p. 504. . Bifurcation of a complaint in this manner in no way suggests that harassment will always take the form of either hostile work environment or quid pro quo harassment. See Wood, pp. 566-567. Courts have simply created a mechanism for pleading a case. When faced with a situation such as the instant suits, a plaintiff may plead both theories. Trial courts, recognizing the artificial nature of the distinction, should be liberal in construing EEOC complaints. See Wood, pp. 578-579. . Judge Wood, with a broad interpretation of scope of employment, envisions vicarious liability for behavior which would traditionally fall under the rubric of hostile work environment. My view of agency principles, informed by the concept of delegated authority, is not as expansive a basis on which to ground vicarious liability for hostile work environment harassment. . I believe we must assume prompt reporting. A negligence standard will encourage companies to publicize sexual harassment policies and provide effective grievance procedures. If the culture is such that there is some hindrance to reporting, it will be a factor considered by the courts in determining negligence. Perhaps placing the burden of reporting on the harassed employee and making public this burden through the dissemination of policies will foster an atmosphere where victims of harassment will be more ready to realize their rights. Cf. Cudahy, p. 505. . Judge Coffey, Judge Manion, and Judge Wood express concern that employers will be "baffled” by this heightened duty of care. See Coffey, p.' 530, Manion, p. 557, Wood, p. 189. I believe that this heightened duty has been present in courts’ approach to supervisory sexual harassment as the supervisory relationship has been for some time a focal point of our concern; it should therefore pose no confusion to employers. Moreover, employers should regularly rethink their responsibility for and approach to the supervisory work environment. If this heightened duty does indeed cause employers pause, I expect it to produce more innovative and thoughtful approaches to this problem from them. I would add that my approach to negligence is in accord with Chief Judge Posner’s, joined by Judge Coffey and Judge Manion in this respect. . I note Eilerth was subsequently promoted.
CUDAHY, Circuit Judge, concurring. I participated in this en banc rehearing as a member of the panel that originally heard Jansen (with Judges Coffey and Flaum). Hence, my participation is limited to that case. I join Judge Flaum’s concurring opinion, and I write primarily to elaborate on what constitutes an appropriately “heightened” duty of care for employers whose supervisors engage in hostile environment harassment. For, as Judge Flaum indicates, there are good reasons for a heightened standard for supervisor misconduct in contrast to the same misconduct by fellow employees. It may be that Judge Wood’s analysis converges with Judge Flaum’s on the bottom line. Judge Wood mentions circumstances in which supervisors may exceed the scope of their employment and therefore act without delegated authority. See Wood, pp. 574-575. In his negligence analysis Judge Flaum calls for a heightened standard of employer care. See Flaum, p. 502; see also Posner, pp. 511-512. I doubt that the result in Jansen, for example, would differ under one or the other of these approaches. Nevertheless, it is necessary to distinguish quid pro quo from hostile environment claims. The Supreme Court distinguished them in Mentor with an implication, at least, that they might better be treated differently. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986). Justice Marshall, concurring in the judgment in Meritor, read the majority opinion this way and objected to “a special rule, to be applied only in ‘hostile environment’ cases.” Id. at 77, 106 S.Ct. at 2410 (Marshall, J., concurring in the result). But the opposite view seemingly prevailed, and we must take our guidance from that fact. The other circuits have taken this lead. See, e.g., Faragher v. City of Boca Raton, 111 F.3d 1530 (11th Cir.1997) (en banc); Nichols v. Frank, 42 F.3d 503 (9th Cir.1994); Bouton v. BMW of N. Am., Inc., 29 F.3d 103 (3d Cir.1994); Kauffman v. Allied Signal, Inc., Autolite Div., 970 F.2d 178 (6th Cir.1992); but cf., Karibian v. Columbia Univ., 14 F.3d 773 (2d Cir.1994). That the Supreme Court distinguished the two kinds of harassment claims makes sense. In a quid pro quo situation, a supervisor acts with actual or apparent authority when he promises employment goodies or threatens their withdrawal to extract sexual “cooperation.” Quid pro quo is always a creature of power. It is the classic paradigm of powerful males forcing their wills on vulnerable females. A hostile environment, on the other hand, can be created by persons of equal, or even inferior, status to the victim. Supervisory rank may facilitate it, and power may enhance it, but neither is essential, or even central, to the creation of a hostile environment. In Jansen, the supervisor Antoni allegedly created a hostile environment. Power is not of the essence there, as it certainly is for quid pro quo harassment. One can imagine a lesser figure doing almost the same thing as Antoni. But his rank in the company was of considerable help to him in creating a milieu of abuse. It is not easy to articulate exactly how a supervisor’s abusive conversation and posturing implicates his authority. Still, the intuition remains that the delegated power certainly helps — just as it helped An-toni. Just as it is the centrality of power and authority that dictates strict liability for quid pro quo harassment, it is the shadow of power and authority that dictates a heightened negligence standard for supervisory hostile environment harassment. The negligence standard used to govern hostile or abusive environment claims involving a supervisor must be negligence as related to a special and demanding duty of care. The standard of care should be somewhat like that imposed on packers of parachutes or open heart surgeons. See W. Page Keeton Et Al, Prosser & Keeton On The Law Of Torts § 38, at 208-9 (5th ed.1984); see also, e.g., Rustay v. Consol. Rail Corp., 775 F.Supp. 161, 163-65 (D.N.J.1991) (operating railroad requires greater duty of care). Judge Flaum has pointed out a weak link in a negligence approach: the assumption that a system can be built under which victims of supervisory sexual harassment will feel free to report the problem to the company. See Flaum, p. 502. There ought to be a presumption that in the reporting system under examination, victims could not reasonably be expected to report their problems (unless, of course, the victim actually did). The employer would have an opportunity to overcome this presumption. But, if no evidence were presented, the presumption would import liability. Also, under the negligence standard, one of the principal liability issues is whether the employer had actual or constructive notice of the creation of a hostile environment by a supervisor. In Faragher v. City of Boca Raton, 864 F.Supp. 1552, 1563 (S.D.Fl.1994), the district court held that, if a situation in the company were sufficiently severe to amount to a hostile environment, it was by the same token sufficiently visible to put the employer on constructive notice. In general, this approach has merit. See Meritor, 477 U.S. at 72, 106 S.Ct. at 2408 (citing with approval Taylor v. Jones, 653 F.2d 1193, 1197-99 (8th Cir.1981) (holding employer liable for racially hostile working environment based on constructive knowledge)). I would create a rebuttable presumption that, if a situation attributable to a supervisor is severe enough to create a hostile environment, the employer is on constructive notice that remedial measures are required.. The employer, of course, could offer evidence to the contrary. These two presumptions give concrete meaning to Judge Flaum’s call for a heightened duty of care. As I noted at the outset, this view might lead to verdicts not too different from Judge Wood’s approach. These presumptions, however, would respect and reward prudent employers who (1) provide a genuinely protected channel for reporting harassment and (2) remain in close touch with the possibility of harassment by supervisors in their own organizations. The diligent employer will have an opportunity to adduce evidence to this effect and thereby to escape liability.
KANNE, Circuit Judge, concurring. I join Judge Flaum’s thoughtful opinion— except for reservations in two areas. First, with regard to quid pro quo harassment, I do not think an employer should be held strictly liable for mere threats made by a supervisory employee. I agree that our focus should be on deterring sexual harassment, but I believe a negligence standard will adequately do the job. A negligence standard will serve to deter quid pro quo threats because employers will rationally seek to avoid liability 1) by establishing policies and procedures to circumscribe improper conduct by supervisors, and 2) by imposing appropriate sanctions against errant supervisors once notified by an employee that a supervisor has made a quid pro quo threat. Beyond that, there is not much an employer realistically can do to put a stop to quid pro quo threats that do not result in any adverse job consequence. Imposing strict liability for such threats would therefore yield little (if any) greater deterrence and generate significantly greater litigation costs than a negligence standard. Moreover, quid pro quo threats may be ambiguous, and if such threats make an employer strictly hable, plaintiffs will attempt to turn all instances of supervisor sexual harassment into “implied threats” in order to take advantage of strict liability’s easier burden of proof. On the other hand, I cannot agree with Chief Judge Posner’s position that in her threat-only situation (i.e., without an adverse job consequence) Jansen does not have a viable quid pro quo claim. Although strict liability is inappropriate for quid pro quo threats, Jansen should still be able to win on her quid pro quo theory if she can prove her employer’s negligence in failing to obviate quid pro quo threats. Quid pro quo claims involving only threats deserve scrutiny for employer negligence because of the qualitatively more oppressive nature of quid pro quo harassment. Perhaps the facts here will demonstrate that the employer was not negligent, but Jansen’s quid pro quo claim should be remanded along with her hostile environment claim so the district court can make the negligence determinations. Admittedly, in this and many cases involving mere threats, adding a quid pro quo claim to a hostile environment claim may not make much practical difference because the supervisor’s threat will already be relevant to the hostile environment negligence analysis. In some cases, however, the quid pro quo claim will stand alone, and negligent employers should be liable for such quid pro quo threats. My second reservation regarding Judge Flaum’s opinion concerns his treatment of hostile environment harassment. I cannot agree with Judge Flaum’s language suggesting that employers are under a “heightened duty of care” for instances of supervisor harassment. A negligence standard always entails a fact-specific inquiry regarding what care the parties reasonably should have taken. The training, authority, and control given supervisors by an employer will therefore always enter the negligence equation. Calling this a “heightened duty of care” may suggest to some that employers should be presumed liable for supervisor hostile environment harassment. I cannot endorse any such presumptions that take this type o