Employment Litigation · Primary-source case analysis

Ellerth: Supervisor Harassment, Tangible Actions, and the Employer Defense

By Aneeta Mishra and Timothy Chan

Published April 28, 2026

Decision: Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).

Ellerth pairs agency principles with a practical defense that rewards prevention, correction, and reasonable use of complaint procedures.

A supervisor made threats but no tangible action followed

Kimberly Ellerth alleged repeated sexual remarks and threats by a midlevel supervisor. She suffered no demotion, discharge, or denied promotion and did not use the employer’s complaint procedure before resigning.

Tangible employment actions create strict vicarious liability

When a supervisor uses delegated authority to cause a significant change in employment status, the employer is vicariously liable and cannot invoke the affirmative defense.

No tangible action permits a two-part defense

The employer must prove reasonable care to prevent and promptly correct harassment and that the employee unreasonably failed to use preventive or corrective opportunities. Both elements are required.

Disposition

The Court vacated the employer’s judgment and remanded for application of the new framework. Whether the employer could prove the defense remained open.

Key takeaways

• Determine whether a tangible employment action occurred.
• Audit policy communication and response mechanisms.
• Examine reasons for any failure to report.
• Treat both defense elements as evidentiary requirements.