Thomas F. Powers is Professor and Chair in the Department of Political Science at Carthage College.  He is the author of American Multiculturalism and the Anti-Discrimination Regime: The Challenge to Liberal Pluralism.

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Brown v. Board of Education famously restored the rightful meaning of the Fourteenth Amendment’s promise of “equal protection of the laws,” signaled the beginning of the end of state-sanctioned discrimination and segregation, and brought the civil rights revolution into the lives of every American affected by the public schools (teachers, children, parents). Its effect was electrifying. A year and a half later the Montgomery bus boycott commenced and what we term the civil rights movement was under way.

The shape and spirit of civil rights politics today is very different. We can look back with fondness and pride to 1954, the year Brown was decided; today, civil rights somehow divides as much as it unites. Is there some point of reference that might help us to see all at once, broadly and deeply, what the civil rights revolution has come to mean for us, some helpful landmark like the Brown decision once was? One could point to the 1964 Civil Rights Act—or to it and other laws of the 1960s—to capture the broad effort, public and private, that gave rise to the current state of things. But too much has happened since 1964 for that to be an adequate vantage point. 

I can’t think of any one court case alone by itself that, like Brown, can help us to fix in the mind’s eye the wide expanse of civil rights efforts in America as they have unfolded in recent decades. But I can think of two, bound together in a legal “test,” that do. Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, decided in 1998, can do that kind of work. These two cases, and the “Ellerth-Faragher test” they announce, are relatively unknown. But approached in the proper spirit, these decisions may be made to reveal a great deal and to help us understand the penetrating power and sometimes unsettling effects of civil rights reform in our lives.

The narrow holdings of these cases do not do justice to all of the innovations in the law that are reflected in the test’s ultimate meaning. But if we step back to look at the Ellerth-Faragher test from the proper height, what we see is nothing less than a wholesale reinvention of the civil rights revolution to make it much more powerful and pervasive—but also, as I have argued, much more invasive, punitive, and censorious. 

Signaled here are several tightly-bound and interrelated developments: a significant expansion of what we deem discrimination to be; a radical extension of the domain of employer responsibility for this new and much more flexible conception of discrimination; and new proactive measures employers and other institutions would eventually take on to fulfill their now-magnified duties. Without ever admitting the fact, or naming adequately what was going on, in its Ellerth-Faragher test the Supreme Court enshrined a much more aggressive regime of anti-discrimination measures to be administered, or rather enforced, by private parties, a new kind of citizen-led but state-guided civic moral project of citizen-shaping that is unprecedented in American life.

I hasten to add that I am not making any simple grand causal claim for the influence of this step in the unfolding of anti-discrimination law. Already by the early 1990s diversity training was a going concern. As Frank Dobbin notes, a survey in 1992 “found that three-quarters of America’s biggest firms had a diversity manager… By 1994, more than two-thirds of Fortune 50 companies boasted of diversity initiatives.” Broad social, moral, and political forces were also of course at work, and these were not the product of “law” alone, however important the role of law may have been. To repeat, Ellerth-Faragher is important above all because it helps us to see what has happened to the meaning of civil rights reform as its mission and aspirations expanded over time.

The unjustly unheralded Ellerth-Faragher test

To claim that these two cases taken together are akin to Brown, identifying what is most essential for understanding civil rights politics of the present day, might seem odd, not to say perverse. These are not decisions of constitutional law but of statutory interpretation, and pertain only to Title VII of the 1964 Civil Rights Act, which governs employment discrimination. Employment law is not the most prestigious or glamorous area of law, and the Ellerth-Faragher test does not name a legal doctrine that is generally known outside the world of the employment attorneys who must operate within its bounds. Nor do liability standards, central to this legal test, conjure rousing speeches or marches on the nation’s capital.

The strangeness of my claim will likely be compounded by a perusal of the key passage repeated in the two cases in which the test is stated:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with … authority over the employee. When no tangible employment action is taken [as part of alleged harassment], a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

I grant that it is not immediately obvious why the legal distinctions parsed here are as momentously important as I want to insist that they are.

But in fact our general ignorance of these two cases is or ought to be something of a scandal. Who has heard of the Ellerth-Faragher test? Not only is the general public unaware of it, but even informed citizens and people familiar with civil rights law in a general sense (an undergraduate, say, who has taken a course on constitutional law that covers civil rights) are unlikely to be able to say what it is or does. 

This matters because what the Ellerth-Faragher framework allows us to see is the summation and outline, in very dense form, of a series of extraordinarily important expansions of anti-discrimination law that shape our life at present in powerful ways. These expansions of what Shep Melnick calls the “civil rights state” are themselves not very well-known. They were all introduced surreptitiously by reinterpretations of the law crafted by civil rights bureaucrats and federal judges in the lower courts. It is true that, eventually, Congress did obliquely recognize some of these developments (up to a point) in provisions of the 1991 Civil Rights Act. But it was mainly the Supreme Court’s sanctioning of many otherwise largely unknown but vitally important alterations of things that would lend those changes the authority and weight that would permit them to take hold. 

And take hold they did, with profound consequences not just for employment lawyers and their clients, but for the very meaning of modern democracy itself. That may seem to be hyperbole, but it is not. Represented here are several shifts in our civil rights “Overton window”; ours is not the civil rights regime of Everett Dirksen and Hubert Humphrey. And there is no better example of the Supreme Court’s nearly-invisible but monumentally consequential role in bringing this about than the Ellerth-Faragher test. 

Questions at bar

In order to understand the broader significance of these cases, we must of course begin with some elementary familiarity with the two decisions and the immediate, narrow questions of law they address. 

Just over a quarter century ago, the United States Supreme Court decided two cases on the same day—June 26, 1998—dealing with a number of questions pertaining to standards of liability in employment discrimination cases. Burlington Industries v. Ellerth and Faragher v. City of Boca Raton were two separate decisions (not consolidated “companion cases”) in which the Justices writing for the majority (Anthony Kennedy and David Souter, respectively) incorporated identical language on the key issues in their opinions. Their shared text, an extended passage appearing unaltered in both decisions, provides the working principles of what today is known as the Ellerth-Faragher liability test and the Ellerth-Faragher “defense.” 

The facts in the two cases usefully make the point that sexual harassment is something that we rightly think ought to be prohibited and, somehow, policed under the law. According to the findings of the trial court, Kimberly Ellerth was a salesperson whose manager repeatedly made sexual remarks about her body and the clothing she wore, and touched her in sexually suggestive ways. When she did not respond to his overtures, the supervisor told her that he could make her life at the company “very hard or very easy.” Denied a promotion, she quit her job and sued for harassment. Beth Ann Faragher, a part-time lifeguard for the Parks and Recreation Department of the City of Boca Raton, was subjected to “uninvited and offensive touching,” “lewd remarks,” and speech characterizing women “in offensive terms.” Her male supervisors told her that they would never promote a woman to the rank of lieutenant and at one point one of them said to her, “date me or clean toilets for a year.” 

The immediate questions of law raised in these cases are framed in terms of the battle between the competing interests of plaintiffs and defendants in harassment cases. In Ellerth, the lower courts found that while there was indeed harassment, Burlington Industries was not to be held liable because Kimberly Ellerth had not reported her allegations in a formal way. How could the employer be liable if it did not know what had happened? That issue arose in Faragher as well. But the latter case raised other questions. First, as a federal court of appeals held, the actions the managers had taken were outside of the realm of their “employment” responsibilities altogether and, hence, the employer should not be liable. In addition, it turned out that while the city of Boca Raton did have a policy against sexual harassment, it had failed to disseminate it; the managers under scrutiny in the case could plausibly claim never to have heard of it.

First and foremost, the legal questions in both cases came down to sorting out the contours of liability for employers in sexual harassment disputes. Were companies to be held responsible for the actions of their employees undertaken in the workplace but not as part of their employment duties? If employers were to be held liable for the activities of supervisors in particular, would the standard of liability be automatic vicarious liability (if it happened at all, the employer is automatically liable and the only question that remains is to determine compensation) or would there need to be an inquiry into the details of what happened—in other words, should a lower legal liability standard of “negligence” apply (in which case it would be sorted out in a civil trial)? And once the standard of liability for supervisors was determined, what about co-workers and other (mere) fellow employees? Would employers be liable for their actions, too, and according to what legal standard of liability? 

These questions had long been debated by the federal civil rights bureaucracy and in the lower courts. The most aggressive pro-plaintiff view of things had been stated in an EEOC “guidance document” in 1980, a kind of far-sighted oracle of the future that called for liability in all cases of workplace harassment while mandating a higher standard of automatic liability for supervisors but not for mere fellow-workers (in those cases the lower standard of negligence would apply). Some courts, to include the Supreme Court’s own earlier harassment jurisprudence, had proven more sympathetic to the claims of employers and less immediately solicitous of the claims of those alleging harassment.

The Supreme Court’s Ellerth-Faragher test adopted the more aggressive EEOC position down the line. Though some plaintiffs’ attorneys would complain later of its perceived limitations, from the perspective of employment law at the time, this represented a shift in the direction of a more plaintiff-friendly framework for harassment lawsuits.

The big picture

As I have indicated already, it is a mistake to read these cases simply as a guide to the precise questions of employer liability that are answered by the terms of the test. The greater utility of the Ellerth-Faragher moment, to repeat, is in its power to draw together a set of very broad developments that are hard to understand if we cannot somehow fix them at one point in time so that we can step back and think about them. 

The first thing that we learn from a careful examination of the terms of the test is that this is a framework developed to deal with the relatively novel conception of discrimination as “harassment.” Ellerth-Faragher represents indeed the culmination of more than a decade of efforts to magnify immensely the project of civil rights regulation in America. Earlier Supreme Court decisions of 1986 and 1993 had formalized the notion (originating once again in the civil rights bureaucracy and the lower courts) that “discrimination” (never defined by civil rights law) would come to embrace as well “harassment,” both the “quid pro quo” and “hostile environment” varieties. This was connected to a similar expansion of the meaning of discrimination to encompass the use of “stereotypes” in the workplace, likewise cemented into the architecture of civil rights law by the Supreme Court (in 1989). (Another very important expansion of discrimination—from “disparate treatment” to “disparate impact”—is likewise traceable to a 1971 Supreme Court decision and, before that, to the exertions of the EEOC.)

The policing of harassment, like the policing of stereotypes (and “disparate impact”), went well beyond the original mandate of Title VII’s prohibitions of workplace discrimination. The 1964 Act clearly has in mind concrete, overt employment decisions made on the basis of identifiable racially or sexually discriminatory intentions, the firing, not hiring, or not promoting of individuals because of their race or sex. This is the domain of what are termed disparate “treatment” lawsuits, where “smoking gun” evidence of genuine discriminatory intent is the gold standard and where tangible employer choices (about jobs, promotions, pay) are the main issue.

When the focus of anti-discrimination efforts in the workplace shifted to harassment and stereotypes, a much broader project of social regulation came into play. Countering harassment and stereotypes would require the policing of what people think about one another and how they treat one another. It would mean that employers would be made responsible not only for actions of employees unconnected to their workplace duties, but also for actions that would take place without the knowledge of the employer. 

Justice Souter took this issue up directly in his Faragher opinion. Lower courts had been reluctant to shift responsibility to employers in such cases, holding that “harassment consisting of unwelcome remarks and touching is motivated solely by individual desires and serves no purpose of the employer,” that sexual activity is outside “the scope of employment.” Some courts, he noted, had “likened hostile environment sexual harassment to the classic ‘frolic and detour’ for which an employer has no vicarious liability.” 

Souter simply dismissed such hesitations, “recognizing that supervisors have special authority enhancing their capacity to harass” and, more broadly, implying or assuming a general responsibility of employers to do the right thing when it comes to harassment.

But the Ellerth-Faragher test also made it clear that liability would extend not only to supervisors (and managers and executives), but also to co-workers and employees in general. The only difference was the standard of corporate liability that applied (negligence). Without even noting the fact, Souter and Kennedy simply took for granted that employers would be expected to bear the burden of liability for the actions of all employees in any instance where the activity in question was in the ballpark of discrimination or harassment. Other cases would extend employer liability further still, to suppliers, contractors, vendors, and customers as well. 

Our long history of religious freedom suggests, one would think, that no employer would ever make it its business to inquire about the eternal salvation of the souls of employees or others who happened to be connected to a workplace. But because of these shifts in the meaning of Title VII, today we accept without question the idea that businesses and other employers will or ought to be deeply concerned with the racism, sexism, and homophobia of anyone and everyone operating within their sphere of influence. 

“prevent and correct”

But harassment and liability are not the only big expansions of anti-discrimination visible in this case. A third, crucially important, magnification of the anti-discrimination regime tucked away in the Ellerth-Faragher test is the source of some of the most controversial features of contemporary life. This is to be found, stated with amazing precision and great prescience, in the momentous but easily-overlooked phrases, “prevent and correct promptly” and “preventive or corrective opportunities,” stated as part of the employer’s possible legal “defense” against a harassment lawsuit at the end of the statement of the test: “The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.”

One would not know it to look at it, but contained in this pregnant formula is a legal mandate for what we call diversity training (“preventive”) as well as for the meting out of disciplinary consequences (“corrective”) by employers, to include, crucially, the firing of employees where it is thought warranted or useful—the legal basis of what we today call “cancel culture.” 

Here too, the Supreme Court was simply ratifying a structure already put together by the EEOC and the lower courts. “Prevention,” said the oracular 1980 EEOC guidance document I mentioned earlier, “is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, … informing employees of their right to raise and how to raise the issue of harassment under Title VII, developing methods to sensitize all concerned.” (We thus recall that, long before it was “diversity training,” the equivalent of workplace anti-harassment training was called “sensitivity” training.) In 1999, Sandra Day O’Connor would formally recognize the “educational” role of Title VII enforcement in Kolstad v. American Dental Association, a case widely cited as providing official sanction for diversity training.

It is true that some plaintiffs’ attorneys complain that because anti-discrimination enforcement relies here on a “prophylactic” view of Title VII, it may be less aggressive than it could be—a “rather anemic” view of Title VII, as law professor Susan Bisom-Rapp has put it. “Gone is the image … of employers stamping out workplace discrimination when it occurs. In its stead, Souter provides [in Faragher] the figure of a benevolent employer ‘informing employees of their right to raise and how to raise the issue of harassment’.” On the other hand, far from “anemic,” it is of course possible to see the rise of employer diversity training and related efforts to represent a fairly robust campaign of political-cultural-moral indoctrination. 

But, however one sorts out that question, Professor Bisom-Rapp’s overall judgment surely must be modified in the light of the role played by the “corrective” measures that are also signaled in the Ellerth-Faragher framework. Diversity training’s lessons presumably hit home with much greater force because they are at least implicitly backed by real threats affecting people’s ability to earn a living.

While the 1980 EEOC guidance document stated that employers need to take “immediate and appropriate corrective action,” it did not spell out what “developing appropriate sanctions” would mean. EEOC guidance documents issued later, like this one from 1999 were not so reticent: “Examples of Measures to Stop Harassment and Ensure that it Does Not Recur: oral or written warning or reprimand; transfer or reassignment; demotion; reduction of wages; suspension; discharge; training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer’s anti-harassment policy; and monitoring of harasser to ensure that harassment stops.” The coercive power of law is not always readily visible in the workings of the civil rights apparatus, but it is there if one looks for it.

It is worth noting that, at the time, the Ellerth-Faragher test was intended partly to offer clarity to employers who were trying to limit their liability, to give employers something like a legal “safe harbor.” Harassment lawsuits in the tens of millions of dollars were already making headlines in the 1990s and employers wanted to know what kind of steps (preventive, corrective) they could take proactively to protect themselves from what would be in almost every case, given the intimate nature of harassment, a set of more or less unforeseeable problems. As Dobbin reports, one senior vice president of the Chamber of Commerce waxed enthusiastic about the high court’s resolution of things: “The Court responded to our cries in the wilderness for clear, bright-line standards so employers will know what to do.”

But the law works in mysterious ways. What might have looked to corporate capitalism like a path of self-protection must seem, to anyone viewing these changes from a properly political perspective, to be the introduction of significant changes in the logic of modern democratic life—new modes and orders.

A change at the level of our constitution?

The changes in our moral, social, and political life wrought by these developments, taken together, have not yet been described with adequate force. Some wise historian of the future will trace the path from Horatio Alger to “the organization man” to woke capitalism.

Today business corporations and other large institutions in America take up, not just as a matter of course but often with genuine zeal, the task of preaching a new civic moral education of the most overtly political sort. Those who undertake this public task follow out the commands of the law but at the same time they act, and appear to act, in their “private” capacity, as concerned managers or fellow-employees (however much they may have been induced by the law’s incentives to do so). The new education they provide, supplemented by other workplace policies and practices, teaches among its lessons both sensitivity to perceived offense for victims and potential victims and, for perpetrators or potential perpetrators, the silencing of what is or may be deemed offensive, a significant policing not just of behavior but also of speech and, ultimately, of thought. All of which is also backed by significant threats of real-world painful consequence.

Such a vision of things cannot be thought implausible, since it is a manifest reality. But it ought to strike us as strange—and we ought to be taken aback by its deep connection to our laws.

A number of people by now have said that the civil rights revolution has brought about a change at the level of our constitution, in every sense of the word. Ellerth and Faragher help us to see how Title VII, as it expanded out in several different directions during the 1980s and 1990s, was at the center of a newly-created political order that would challenge our liberal democratic constitutional tradition in many different ways. Privatizing enforcement of the private interactions of individuals did not so much obliterate the public-private divide as turn it on its head, making private individuals the forceful arm of the new public order. In the process we somehow abandoned traditional constitutional norms concerning free speech, freedom of association, due process, wariness concerning legislating morality, the public-private divide, and the separation of powers. We could do worse in trying to understand how this came about than to unpack the legal knot represented by the Ellerth-Faragher test.