                     United States Court of Appeals,

                               Eleventh Circuit.

                                 No. 94-4878.

 Beth Ann FARAGHER, Nancy Ewanchew, Plaintiffs-Appellants-Cross-
Appellees,

                                      v.

   CITY OF BOCA RATON, a political subdivision of the State of
Florida, Defendant-Appellee-Cross-Appellant,

           Bill Terry, David Silverman, Defendants-Appellees.

                                Feb. 8, 1996.

Appeals from the United States District Court for the Southern
District of Florida. (No. 92-8010-CIV-SH), Shelby Highsmith, Judge.

Before COX, Circuit Judge, DYER,               Senior   Circuit    Judge,   and
GOETTEL*, Senior District Judge.

       COX, Circuit Judge:

       In this case we must decide several important questions

regarding hostile work environment sexual harassment under Title

VII.

                                   I. FACTS1

       Beth   Ann   Faragher    and   Nancy    Ewanchew   worked    as   ocean

lifeguards for defendant City of Boca Raton, Florida (the "City"),

in the Parks and Recreation Department's Marine Safety Section.

Only four to six of the forty to fifty lifeguards were female.              The

Marine Safety Headquarters was a small, one-story building with

limited facilities, and all of the lifeguards shared the same

locker room and shower.         The tight quarters and high male-female

       *
      Honorable Gerard L. Goettel, Senior U.S. District Judge for
the Southern District of New York, sitting by designation.
       1
        The facts are drawn from the district court's Findings of
Fact.
ratio   apparently       led    to    a    rambunctious    atmosphere         among    the

lifeguards.

     During the relevant time frame, defendants Bill Terry and

David Silverman acted as supervisors of the ocean lifeguards, Terry

as Chief of the Marine Safety Section and Silverman as a Marine

Safety lieutenant and then captain.                   Terry had the authority to

supervise all aspects of the lifeguards' work assignments; to give

oral reprimands and place reports of disciplinary actions in

personnel files;         and to interview and select new lifeguards,

subject     to    approval      by    higher       management.          Silverman      had

supervisory authority over the lifeguards' daily duties, including

designating       work   assignments        and    supervising    physical         fitness

routines.

     The Marine Safety Section was organized according to a clear

chain     of     command.        Lifeguards         reported     to   Marine       Safety

lieutenants, and above them to captains;                   the captains reported

directly to the Chief of the Marine Safety Section, who was

directly       supervised      by    the    Recreation    Superintendent;             the

Recreation Superintendent reported to the Director of Parks and

Recreation, who reported to the City Manager.                         Lifeguards had

almost no contact with City officials such as the Recreation

Superintendent.          Marine      Safety       Headquarters    was    in    a    remote

location, far away from City Hall.

     Marine Safety Chief Terry subjected both Faragher and Ewanchew

to uninvited and offensive touching, and Ewanchew to offensive

language as well.           For example, Terry would put his arm around

Faragher and rest his hand on her buttock.                       In a particularly
egregious   example       of    Terry's   touching,    Terry    pressed   himself

against Ewanchew's buttocks and simulated sexual movement while the

two were at the water fountain.              Other female lifeguards similarly

were subjected to Terry's uninvited and offensive touching and to

his demeaning and offensive comments.

       Lieutenant Silverman made offensive comments and gestures to

both Faragher and Ewanchew.            For example, in the presence of both

Faragher and Ewanchew, as well as other lifeguards, Silverman

engaged   in     a    pantomime    depicting      cunnilingus.        Examples    of

Silverman's offensive comments include saying to Faragher, after

tackling her, "If you had tits I would do you in a minute," and to

Ewanchew, "There are a lot of tits on the beach today."                 Silverman

also made offensive remarks to other female lifeguards.

       Neither       Ewanchew   nor    Faragher    complained    to    Parks     and

Recreation Department management about Terry's and Silverman's

conduct while they were employed with the City or when they

resigned.      However, they both spoke about Terry's and Silverman's

conduct with one of their supervisors, Marine Safety Lieutenant and

Training Captain Robert Gordon.                 In fact, most of the female

lifeguards complained to Gordon about Silverman's language and

conduct. The lifeguards did not speak with Gordon on a subordinate

to superior basis;         they spoke with him because they held him in

high   repute.         Gordon    did   not    report   the   complaints    to    his

supervisor, Terry, or to any other City official.

       Ewanchew resigned from her position with the City in April of

1989, saying that she was leaving because she had found a better

job.    At some time after her resignation, Ewanchew visited Terry
and requested re-employment on a part-time basis.                She was not

re-employed.       Faragher resigned in June of 1990 to attend law

school.    Her decision to leave was unrelated to the alleged sexual

harassment.      She did not discourage her sister from applying for a

lifeguard position with the City.

       In April of 1990, Ewanchew wrote a letter to the City's

Director    of   Personnel   complaining   that     she   and   other   female

lifeguards had been sexually harassed by Terry and Silverman while

she was employed by the City.      The City did not know of Terry's and

Silverman's conduct until receiving Ewanchew's letter.              The City

then investigated Ewanchew's complaint, determining that Terry and

Silverman had engaged in some inappropriate conduct.                The City

reprimanded and disciplined them both.

                        II. PROCEDURAL BACKGROUND

       In 1992, Faragher and Ewanchew sued the City, Terry, and

Silverman.       Faragher sued the City for sexual harassment under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e                et

seq.   (Count    I).    Faragher   and   Ewanchew    each   sued   Terry   and

Silverman for sexual harassment under 42 U.S.C. § 1983 (Counts II

and III).     Faragher and Ewanchew also asserted pendent state law

claims.    Faragher and Ewanchew each sued Terry for battery (Counts

IV and V) and the City for negligent retention and supervision of

Terry (Counts VI and VII).         The district court held a non-jury

trial on all claims.

       The district court entered judgment for Faragher on her Title

VII claim against the City, awarding her $1 in nominal damages.

The court held that Terry's and Silverman's offensive conduct was
sufficiently severe and pervasive to alter the conditions of

Faragher's employment by creating a hostile work environment.                         The

court held that the City was directly liable for Terry's and

Silverman's conduct under agency principles based on Terry's and

Silverman's      supervisory       authority    and     the    overall       workplace

structure.       In    addition,     the   court      held    that    the     City    was

indirectly liable for Terry's and Silverman's offensive conduct

because   the    court's    finding      that   the    conduct       was    severe    and

pervasive "supports an inference of knowledge, or constructive

knowledge,      on    the   part    of   the    City    regarding          Terry's    and

Silverman's sexual harassment."

     The district court entered judgment for Faragher on her § 1983

claim against Terry and Silverman.                 Noting that the Eleventh

Circuit has not recognized a § 1983 cause of action for sexual

harassment,     the    court   held      that   such    a    cause    of     action    is

cognizable based on the weight of authority from other circuits. 2

The court found that Terry and Silverman acted under color of state

law based on their supervisory authority.                    The court found that

Faragher had proved her § 1983 claim by showing actionable sexual

harassment under Title VII and intent to harass based on membership

in a particular class, i.e., females.              The court rejected Terry's

qualified immunity defense.           The court awarded Faragher $10,000 in

     2
      Neither Terry nor Silverman contends on appeal that sexual
harassment is not cognizable under § 1983. We assume for
purposes of this appeal, but do not decide, that a sexual
harassment claim is cognizable under § 1983. The district court
held that a sexual harassment claim under § 1983 has two
elements: (1) sexual harassment, and (2) intent to harass based
on membership in a particular class. The court held that the
harassment prong is satisfied by showing actionable sexual
harassment under Title VII.
compensatory damages against Terry and Silverman, jointly and

severally.

     The district court entered judgment for Terry and Silverman on

Ewanchew's § 1983 claim.      The court held that Ewanchew did not

prove her § 1983 claim because she failed to show actionable sexual

harassment under Title VII. 3    Specifically, the court found that

Ewanchew's request for re-employment after resigning "makes it

illogical to find a perception of hostility in the work environment

on her part."    In addition, the court found that Ewanchew's

testimony that Terry's and Silverman's conduct was intolerable at

the time was not credible.    The court held that Ewanchew therefore

had not satisfied the requirement that an employee subjectively

perceive the work environment to be abusive.          See Harris v.

Forklift Systems, Inc., --- U.S. ----, ----, 114 S.Ct. 367, 370,

126 L.Ed.2d 295 (1993).

     The court entered judgment for Faragher on her battery claim

against Terry and for Ewanchew on her battery claim against Terry.

The court awarded Ewanchew $35,000 in compensatory damages and

$2,000 in punitive damages.     Faragher was awarded $500 in punitive

damages.

     The court entered judgment for the City on both Faragher's and

Ewanchew's negligent retention claims.      The court held that its

finding that the City had constructive notice of Terry's and

Silverman's conduct for purposes of Title VII liability did not

mean that the City had constructive notice of Terry's conduct for

     3
      As explained in note 2, the district court held that one
element of a § 1983 sexual harassment claim is showing harassment
under Title VII.
purposes of negligent retention liability.            Applying to the City

the reasonable employer standard, the court found insufficient

proof that the City should have known of Terry's conduct before

Ewanchew's letter.

     Faragher and Ewanchew appeal.          The City cross-appeals.

                             III. ISSUES ON APPEAL

     The issues presented on appeal are:            (1) whether, to recover

under Title VII for hostile environment sexual harassment, an

employee must subjectively perceive the work environment to be

abusive at the time that she is employed;          (2) whether the district

court erred in relying on conduct of which Faragher was unaware in

determining that Terry's and Silverman's conduct was sufficiently

severe or pervasive to alter the conditions of her employment in

violation of Title VII;         (3) whether the district court erred in

finding that Faragher was subjected to an abusive work environment

and perceived the environment to be abusive;            (4) whether, under

Title    VII,   the   City   may   be   directly   liable   for   Terry's   and

Silverman's hostile environment harassment of Faragher, regardless

of its actual or constructive knowledge of that harassment;                 (5)

whether, under Title VII, the district court erred in finding that

the City had constructive knowledge of Terry's and Silverman's

conduct based on its pervasiveness; and (6) whether, under Florida

law, the district court erred in finding that the City had no

constructive knowledge of Terry's unfitness for purposes of the

negligent retention claims.

        We are not presented with any challenge to the district

court's judgment for Faragher on her § 1983 claim against Terry and
Silverman.   Nor are we presented with a challenge to the district

court's judgment for Faragher and Ewanchew on their battery claims

against Terry.

                      IV. STANDARDS OF REVIEW

      We review the district court's findings of fact under the

clearly erroneous standard of review.      Pullman-Standard v. Swint,

456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982).

The question of actual or constructive knowledge is an issue of

fact reviewed for clear error. Reich v. Department of Conservation

and Natural Resources, State of Ala., 28 F.3d 1076, 1082 (11th

Cir.1994).   We review the district court's conclusions of law and

its application of law to facts      de novo.   Massaro v. Mainlands

Section 1 & 2 Civic Assn., Inc., 3 F.3d 1472, 1475 (11th Cir.1993),

cert. denied, --- U.S. ----, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994).

                           V. DISCUSSION

A. Ewanchew's Subjective Perception That Work Environment Was
    Abusive Under Harris.

      Ewanchew contends that the district court erred in holding

that she did not satisfy the subjective prong of the hostile

environment test in Harris v. Forklift Systems, --- U.S. ----, 114

S.Ct. 367, 126 L.Ed.2d 295 (1993).    Under Harris, Title VII is not

violated unless the victim of harassment subjectively perceives the

work environment to be abusive, because otherwise the harassment

has not altered the conditions of the victim's employment. Harris,

--- U.S. at ----, 114 S.Ct. at 370.    The district court found that

Ewanchew did not perceive her work environment to be abusive

because her testimony to that effect was not credible and because

she asked Terry to re-employ her at some time after she resigned.
       Ewanchew approaches the district court's holding that she did

not satisfy Harris from two different angles.               First, she argues

that the district court's factual finding that she did not perceive

her work environment to be abusive is inconsistent with its finding

that   she   suffered    $35,000    in   damages    on    her   battery   claim.

According to Ewanchew, the $35,000 damages finding is correct and

leads ineluctably to the conclusion that she perceived her work

environment to be abusive.          Ewanchew's second tack is to contend

that the district court erroneously engrafted onto Harris 's

subjective prong a requirement for present-sense revulsion. Harris

's subjective prong is satisfied, she argues, by after-the-fact

realization of the offensiveness of the perpetrator's conduct.

Terry responds to both of Ewanchew's arguments by contending that

the district court's finding is not clearly erroneous.

        Ewanchew has not demonstrated that the district court's

factual findings are inconsistent.            On Ewanchew's battery claim,

the court found that Terry's offensive touching caused Ewanchew

$35,000 in damages for psychological or emotional injury.                       A

finding of damages resulting from an offensive touching—even if the

touching, when combined with other conduct, constitutes sexual

harassment—does    not    necessarily       mean   that   the   victim    of   the

touching perceived her work environment to be abusive.                   Although

the district court makes no specific finding as to when Ewanchew

suffered damages, Ewanchew's damages from the battery seem to have

occurred some time after she resigned from her lifeguard position

with the City.     In Ewanchew's Reply Brief and at oral argument,

Ewanchew's    counsel    conceded    that    Ewanchew     suffered   a    delayed
reaction to the offensive conduct, but argued that Ewanchew's

delayed reaction satisfies Harris.            Notably, Ewanchew has pointed

to no evidence in the record indicating that she suffered damages

from the battery before she resigned.

     Under this view of the battery damages award, the district

court's      findings   are   not   inconsistent.          The   district   court

reasonably could have found that Ewanchew did not view her work

environment as abusive but, after resigning, suffered emotional or

psychological trauma from the offensive touchings. Thus, it is not

inconsistent, under this view of the facts, to award damages on

Ewanchew's battery claim while finding that Ewanchew did not

satisfy Harris, at least as the district court read Harris.

        Nor is the district court's finding that Ewanchew did not

perceive her work environment to be abusive clearly erroneous. The

district court found "not credible [Ewanchew's] present assertion

that she found [Terry's and Silverman's] conduct intolerable,

then." Furthermore, the court found that Ewanchew "appears to have

tolerated such conduct not because she felt she had to but because

it wasn't that important to her."             In addition to these findings

based   on    the   credibility     of   Ewanchew's    testimony,     the   court

determined that it would be illogical to find a perception of

hostility     on    Ewanchew's   part    in   light   of   her   request    for   a

part-time job after she left the City's employ.

     Ewanchew contends that, even if she did not perceive her work

environment to be abusive at the time, she satisfied Harris 's

subjective prong so long as she felt offended or abused after the

fact.     The parties have not pointed us to any federal case
addressing     after-the-fact   perceptions    of   abuse   under   Harris.4

According to Ewanchew, the subjective prong's raison d'etre is

satisfied by after-the-fact realization of the offensiveness of the

perpetrator's conduct.     The subjective prong, she argues, ensures

that the alleged conduct injured this particular plaintiff.              We

cannot agree that this is the subjective prong's only purpose.

         Harris 's subjective prong ensures that the alleged conduct

altered the conditions of the plaintiff's employment.          See Harris,

--- U.S. at ----, 114 S.Ct. at 370.       Otherwise, Title VII is not

implicated.     Title VII makes it unlawful "to discriminate against

any individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual's ... sex."

42   U.S.C.    §   2000e-2(a)(1).     Sexual    harassment     constitutes

discrimination based on sex but is actionable under Title VII only

if it alters the terms or conditions of the victim's employment.

Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399,

2405, 91 L.Ed.2d 49 (1986).     Hence Harris 's subjective prong:       "if

the victim does not subjectively perceive the environment to be

abusive, the conduct has not actually altered the conditions of the

victim's employment, and there is no Title VII violation." Harris,

--- U.S. at ----, 114 S.Ct. at 370.

         Under Harris, then, Title VII is not violated when the victim

of harassment does not perceive her work environment to be abusive

at the time that she is employed.         But cf. Kimzey v. Wal-Mart

     4
      Ewanchew cites two cases from other circuits interpreting
Harris 's subjective prong but neither addresses after-the-fact
perceptions of abuse. See Dey v. Colt Construction & Development
Co., 28 F.3d 1446 (7th Cir.1994); King v. Hillen, 21 F.3d 1572
(Fed.Cir.1994).
Stores, Inc., 907 F.Supp. 1309 (W.D.Mo.1995) (interpreting Harris

as not requiring well-defined, subjective belief of hostility at

exact moment an incident occurs).                  An employee's conditions of

employment are not affected by what happens after she resigns.

After-the-fact realization of the offensiveness of conduct thus

does    not   satisfy      Harris;      it    is   irrelevant      to     whether     the

employee's conditions of employment were altered.                       Thus, contrary

to    Ewanchew's      contention,     the    district    court     did    not   err    in

requiring Ewanchew to prove that she perceived her work environment

to be abusive during the term of her employment.                    Because she did

not perceive her environment to be abusive, Terry's and Silverman's

conduct    did   not    alter   the    conditions       of   her   employment       and,

therefore, she cannot recover for their conduct under Title VII.

B. Whether Terry's and Silverman's Conduct Was Sufficiently Severe
     and Pervasive To Alter Faragher's Conditions of Employment.

       On its cross-appeal, the City contends that the district court

erred in relying on conduct of which Faragher was unaware in

determining that Terry's and Silverman's conduct was so pervasive

and    severe    as   to   alter     Faragher's     conditions      of     employment.

Faragher does not contend that the district court properly relied

on conduct of which Faragher was unaware.

        The district court's opinion is somewhat ambiguous as to this

issue, but parts of the opinion make it at least arguable that the

district court relied on conduct of which Faragher was unaware in

determining that Terry's and Silverman's conduct was so pervasive

and severe as to alter Faragher's conditions of employment.                           The

district      court    erred    to    the    extent     that,      in    making     this

determination, it relied on conduct of which Faragher was unaware.
See Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th

Cir.1995);      see also Hirase-Doi v. U.S. West Communications, Inc.,

61 F.3d 777, 782 (10th Cir.1995).       In a case of hostile environment

sexual harassment, an employee's conditions of employment cannot be

altered by conduct of which she is unaware.           Moreover, conduct of

which an employee is unaware cannot contribute to her subjective

view of the work environment as hostile.          Edwards, 49 F.3d at 1522;

Hirase-Doi, 61 F.3d at 782.5

     The City argues that, if the district court had considered

only conduct of which Faragher was aware, it could not have found

that Faragher was subjected to an abusive work environment.                The

City further contends that the district court erred in finding that

Faragher subjectively perceived her work environment as hostile or

abusive    in    light   of   her   apparent   nonchalance     toward      her

environment, her failure to complain, and her failure to caution

her sister about applying for a job as a lifeguard with the City.

Faragher responds that the evidence supports the district court's

findings   that     Terry's   and   Silverman's    conduct,   as   known    to

Faragher, was sufficiently severe and pervasive to create an

abusive work environment, and that Faragher subjectively perceived

her environment as abusive.

     If, as the City argues, the district court indeed relied on

conduct of which Faragher was unaware in determining that her work

environment was abusive, the extent of the court's reliance on that

conduct is unclear.      However, that question need not detain us.         We

     5
      Of course, evidence of harassment of which Faragher was
unaware may be relevant to the extent that it corroborates her
allegations.
have no doubt that the district court would have found that

Faragher's work environment was abusive, both objectively and

subjectively, based solely on the conduct of which Faragher was

aware.    Indeed, the record suggests that it might have been clear

error for the district court, having credited Faragher's testimony,

to find otherwise.

         In determining whether a work environment is abusive or

hostile, the totality of the circumstances must be considered.

Relevant       circumstances     include:        "the   frequency         of    the

discriminatory conduct;         its severity;     whether it is physically

threatening or humiliating, or a mere offensive utterance;                      and

whether    it    unreasonably     interferes     with   an    employee's       work

performance."         Harris, --- U.S. at ----, 114 S.Ct. at 371.               Our

review    of    the   record   reveals   that   Faragher     was    subjected    to

frequent and severe discriminatory conduct by Terry and Silverman.

While some of the conduct might be characterized as "mere offensive

utterance," other conduct was physically threatening (for example,

being     tackled     by   Silverman)    and    humiliating        (for   example,

Silverman's comments about Faragher's body, the terms he used to

describe women, and his pantomime of oral sex).                      We need not

catalogue all of the conduct to which Faragher was subjected, for

we have no trouble concluding that Terry's and Silverman's conduct,

as known to Faragher, was severe and pervasive enough to create an

objectively abusive work environment.

     We also conclude that the district court's finding that

Faragher subjectively perceived her work environment to be abusive

is not clearly erroneous.          The district court based its finding
largely on the credibility of Faragher's testimony.                The court

considered Faragher's failure to complain or to caution her sister

about applying for a lifeguard position, but concluded that other

factors explained her actions.        We cannot say that the district

court clearly erred in its resolution of this issue.

C.   Direct Liability   of   City    for   Hostile      Environment   Sexual
      Harassment.

      The City also contends on its cross-appeal that the district

court erred as a matter of law in holding the City directly liable

for Terry's and Silverman's conduct under Title VII, without regard

to whether the City had actual or constructive knowledge of the

conduct.    Citing Steele v. Offshore Shipbuilding, Inc., 867 F.2d

1311 (11th Cir.1989), the City argues that it may be liable under

Title VII for hostile environment sexual harassment only indirectly

through respondeat superior;     that is, only if it knew or should

have known of the sexual harassment and failed to take prompt

remedial action.   Faragher concedes that, underSteele, the City is

not directly liable for Terry's and Silverman's conduct.

      This is a pure hostile environment case.          The district court

acknowledged our admonition in         Steele    that    holding   employers

strictly liable for a supervisor's sexual harassment is illogical

in a pure hostile environment setting.          The court expressly found

that the City had no actual knowledge of Terry's and Silverman's

sexual     harassment   before      receipt     of   Ewanchew's       letter.

Nevertheless, relying on our decisions in Huddleston and Vance, the

court held the City directly liable for Terry's and Silverman's

conduct because it found that they were the City's agents.                See

Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1512 (11th
Cir.1989), overruled on other grounds, Patterson v. McLean Credit

Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989);

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th

Cir.1988).       It held that Faragher need not show either actual or

constructive notice to the City, notwithstanding our statement in

Steele    that     corporate    liability     exists    in    a     pure    hostile

environment case only if the employer knew or should have known of

the harassment.         Steele, 867 F.2d at 1316.

      The Supreme Court has declined to issue a definitive rule as

to when a corporate defendant is liable for hostile environment

sexual harassment under Title VII.            Meritor, 477 U.S. at 72, 106

S.Ct. at 2408. From Congress's decision to define "employer" under

Title VII to include the employer's agents, 42 U.S.C. § 2000e(b),

however, the Court inferred that Congress intended for courts to

look to common law agency principles in Title VII sexual harassment

cases.    Meritor, 477 U.S. at 72, 106 S.Ct. at 2408.                This circuit

has applied agency principles to the issue of corporate liability

for sexual harassment on numerous occasions, including in Steele,

Vance, and Huddleston.

         Our cases establish the following rules.                  An employer is

directly liable for sexual harassment when the harasser is acting

as the employer's agent.           Steele, 867 F.2d at 1316 n. 1;            Vance,

863 F.2d at 1512;         Huddleston, 830 F.2d at 904;            Sparks v. Pilot

Freight Carriers, Inc., 830 F.2d 1554, 1558 (11th Cir.1987). Thus,

an   employer      is   directly    liable   for    sexual    harassment      by   a

supervisor    or    other   employee    acting     within    the    scope   of   his

employment.        See Sparks, 830 F.2d at 1558 (citing Restatement
(Second) of Agency § 219(1)). An employer also is directly liable,

under agency principles, for sexual harassment by a supervisor or

other employee acting outside the scope of his employment if the

supervisor or employee was aided in accomplishing the harassment by

the existence of the agency relationship.        Id. at 1559-60 (citing

Restatement (Second) of Agency § 219(2)(d)).6

         Applying these agency principles, we have held that an

employer is strictly liable for        quid pro quo sexual harassment.

Henson v. City of Dundee, 682 F.2d 897, 909-910 (11th Cir.1982).

As we explained in Steele, a supervisor by definition acts as the

company when engaging in quid pro quo harassment. Steele, 867 F.2d

at 1316.     The supervisor acts within the scope of his actual or

apparent     authority   to   hire,   fire,   discipline,   or    promote.

Moreover, the supervisor uses the means furnished to him by the

company to accomplish the harassment when using his apparent or

actual authority to extort sexual consideration from the victim.

Id. (quoting Henson, 682 F.2d at 910).

         Whereas an employer is always directly liable for quid pro

quo harassment, an employer rarely will be directly liable for

hostile    environment   harassment;      rather,   liability     will   be

indirect.7      Viewed   under   agency   principles,   these    seemingly

disparate results make sense.          A supervisor or other employee


     6
      Accord Gary v. Long, 59 F.3d 1391, 1397 (D.C.Cir.), cert.
denied --- U.S. ----, 116 S.Ct. 569, 133 L.Ed.2d 493 (1995);
Hirase-Doi, 61 F.3d 777, 783 (10th Cir.1995); Karibian v.
Columbia University, 14 F.3d 773, 780 (2nd Cir.), cert. denied --
- U.S. ----, 114 S.Ct. 2693, 129 L.Ed.2d 824 (1994); Bouton v.
BMW of North America, 29 F.3d 103, 106 (3rd Cir.1994).
     7
      We discuss indirect employer liability in section V.D.
typically does not act as the company when he subjects an employee

to a hostile work environment.          Hence the distinction between

liability for quid pro quo      harassment and liability for hostile

environment harassment:

      Strict liability is illogical in a pure hostile environment
      setting. In a hostile environment case, no       quid pro quo
      exists.   The supervisor does not act as the company;      the
      supervisor acts outside "the scope of actual or apparent
      authority to hire, fire, discipline, or promote." Corporate
      liability, therefore, exists only through respondeat superior;
      liability exists only where the corporate defendant knew or
      should have known of the harassment and failed to take prompt
      remedial action against the supervisor.

Id.

      With    respect   to   employer   liability   for   pure   hostile

environment harassment,      Steele and Vance appear to conflict.8

Steele precludes direct employer liability in a pure hostile

environment case, allowing only indirect liability if the employer

knew or should have known of the harassment and failed to take

prompt remedial action.       Id.   Vance,   on the other hand, allows

direct employer liability in a hostile environment case if the

harasser acted as the employer's agent.       Vance, 863 F.2d at 1514-

15.

          The district court correctly reconciled this precedent in

holding that an employer may be liable in a hostile environment

case if either (1) the employer knew or should have known of the

harassment and failed to take prompt remedial action, or (2) the

harasser acted as the employer's agent.         However, as we explain

      8
      Steele and Vance, decisions issued almost
contemporaneously, were the first cases in which we addressed the
standard for employer liability for pure hostile environment
harassment. See Steele, 867 F.2d at 1317; Vance, 863 F.2d at
1515.
below, only in an exceptional case will a harasser act as the

employer's agent in creating a hostile work environment.               This is

not such a case.         The district court erred in holding that Terry

and Silverman acted as the City's agents in harassing Faragher.

         The district court found that Terry and Silverman were the

City's agents based on their supervisory authority and the overall

structure of the workplace. We agree that Terry and Silverman were

the City's agents for some purposes.           But the relevant inquiry is

whether    they   were    acting   as   the   City's   agents   in   subjecting

Faragher to a hostile work environment.            See Sparks, 830 F.2d at

1558-59 (analyzing not whether the harasser was an agent generally

but whether harasser acted as an agent when he harassed victim).

Faragher does not contend that Terry and Silverman were acting

within the scope of their employment when they made offensive

remarks and gestures and touched her.           And we have found no record

evidence suggesting that they were acting within the scope of their

employment when they harassed Faragher.9

     The district court relied on Vance in finding that Terry and

Silverman were the City's agents for direct liability purposes.


     9
      This case is thus distinguishable from Huddleston, on which
the district court relied in part in holding the City directly
liable. In Huddleston, the harasser berated the victim for her
job performance in the course of creating a hostile work
environment. Huddleston, 845 F.2d at 904. Thus, the harasser
acted within his supervisory authority to hire, fire, discipline,
or promote. See Steele, 867 F.2d at 1317 n. 2. Here, however,
there is no evidence that Terry or Silverman acted within their
supervisory authority in creating a hostile work environment.
Significantly, in Huddleston, the harasser's conduct constituted
quid pro quo harassment as well as hostile environment
harassment. See id. Thus, by definition the harasser acted as
the company. Here, though, only hostile environment sexual
harassment is alleged.
Plaintiff in Vance sued her employer for racial discrimination

under 42 U.S.C. § 1981;      the legal elements of a harassment claim

under § 1981 were the same as they are under Title VII.       Vance, 863

F.2d at 1509 n. 3.    She alleged, inter alia, that she was subjected

to a hostile work environment and discriminatorily disciplined

because of her race.       Id. at 1511.   The district court correctly

instructed the jury that the employer was liable if a supervisor

acting within the scope of his employment, as an agent of the

employer, harassed plaintiff.         Id. at 1514 n. 10.          The jury

returned a verdict for plaintiff, but the district court granted

the employer's motion for judgment notwithstanding the verdict.

The district court held, inter alia, that the employer could not be

held liable because it had adequate grievance procedures and

plaintiff had failed to give the employer notice of the harassment.

Id. at 1512.     We reversed, holding that the employer's grievance

procedures did not, as a matter of law, insulate it from liability.

Id. at 1514.

     We also held that an employer may be directly liable for the

existence of a hostile work environment. Id. at 1514-15.10 Because

plaintiff in Vance alleged that her supervisor was an agent of the

employer   for   direct   employer   liability   purposes,   we   examined

whether the evidence was sufficient for the jury to find the

employer   directly       liable   through   its   agent,    plaintiff's


     10
      We cited Huddleston for the rule that when the harasser
acts as an agent of the employer, the harasser is the employer
for purposes of Title VII, and thus the corporate employer is
directly liable. Id. at 1514. As explained in note 9, the
conduct in Huddleston constituted both hostile environment and
quid pro quo harassment.
supervisor.11   Id.   We held that a reasonable jury could conclude

from the evidence that the supervisor was acting as the employer's

agent in creating the hostile work environment.         Id. at 1515.

      In so holding, we listed several factors relevant to whether

a harasser is acting as the employer's agent in creating a hostile

work environment:      the supervisor's direct authority over the

plaintiff, the overall structure of the workplace, and the relative

positions of the parties.       Id.   The district court examined these

same factors in this case in determining that Terry and Silverman

were the City's agents.       However, further scrutiny ofVance reveals

that, while those factors were directly relevant to the allegations

in Vance, they are not dispositive here.

      In Vance, we based our agency analysis largely on the agency

analysis in Hamilton v. Rodgers, 791 F.2d 439 (5th Cir.1986).            See

Vance, 863 F.2d at 1515.       In Hamilton, the Fifth Circuit held that

two   intermediate    level    supervisors   were   agents   of   the   fire

department under Title VII because "[t]hey had authority over

matters such as car assignments and the staffing of shifts, and

they wielded this authority to Hamilton's detriment.              Even more

important, they filed the critical reports that led to Hamilton's

1982 suspension." Hamilton, 791 F.2d at 442 (emphasis added). The

supervisors had denied Hamilton a car assignment, scheduled him for

the night shift, and given him poor evaluations, all for racially

discriminatory reasons. Id. Thus, the supervisors' authority over

      11
      Though we focused in our opinion on whether the jury could
find that plaintiff's first supervisor, Wagner, acted as the
employer's agent, the evidence also showed that other supervisors
acted as the employer's agents in discriminatorily disciplining
plaintiff. See id. at 1507-08, 1511.
Hamilton   and    the   structure   of   the   workplace   showed   that   the

supervisors were acting within the scope of their employment in

violating Title VII.12

     Similarly, in Vance, plaintiff had presented evidence from

which the properly instructed jury could infer that the supervisor

was acting within the scope of his employment when he created the

hostile    work   environment.       The   evidence   suggested     that   the

supervisor had hung a noose over plaintiff's work station.            Vance,

863 F.2d at 1506. The supervisor testified that he had constructed

a device which looked like a noose, but explained "that it had been

designed to desheathe cable to increase productivity."               Id.    We

held that a jury could conclude from this evidence that the

supervisor acted as the employer's agent in creating the hostile

environment.      Id. at 1515.      Viewed in light of     Hamilton, it is

evident that Vance 's focus on the supervisor's authority (to

discipline employees, handle union grievance proceedings, and make

personnel changes) and the overall structure of the workplace was

aimed at determining whether the supervisor was acting within the

scope of his employment when constructing the device ostensibly

designed to increase productivity.13

     12
      Hamilton involved allegations of discrimination in
addition to just the creation of a hostile work environment. The
Fifth Circuit seems to have predicated the employer's liability
on conduct of the supervisors that did not form part of the
hostile environment allegations. See id. Thus, it is not at all
clear that the supervisors' authority and the overall structure
of the workplace were relevant to the fire department's liability
for the hostile work environment.
     13
      Plaintiff's claim was based on allegations of
discriminatory discipline as well as the noose incident. Id. at
1511. Though we did not refer to the discriminatory discipline
in finding that the jury reasonably could conclude that the
     Here, the district court mechanically applied the factors

listed in Vance without determining their relevance to whether

Terry    and    Silverman         were    acting      within    the    scope    of    their

employment in harassing Faragher. The harassment here consisted of

offensive comments, gestures, and touching. If, for example, as in

Vance, Terry and Silverman had constructed something offensive and

intimidating         to   women    under    the       guise    of   trying     to   improve

lifeguard performance, then their supervisory and disciplinary

authority would support a finding that they acted as the City's

agents   in    violating      Title       VII.        But   Terry's    and   Silverman's

supervisory and disciplinary authority does not support a finding

that they were acting within the scope of their employment in

subjecting Faragher to offensive language, gestures, and touching.

Thus, the district court erred in holding the City directly liable

for that conduct.

     Vance demonstrates that Steele overstates the case in saying

that, in a pure hostile environment setting, an employer may be

liable only when the corporate defendant knew or should have known

of the harassment and failed to take prompt remedial action.                             An

employer also may be directly liable if, as in Vance, the harasser

acted    as    the    employer's         agent   in    creating       the   hostile    work

environment.         Still,   Steele accurately describes the rule for

employer liability in the vast majority of hostile environment

cases.    Vance 's finding of direct employer liability is unlikely

employer was directly liable for its supervisors' conduct, the
supervisors clearly were acting within the scope of their
employment in taking disciplinary action against plaintiff.
Thus, the employer would have been directly liable on that basis
as well.
to be replicated in pure hostile environment cases because the

facts of that case were exceptional.   Rarely will a supervisor or

other employee act within the scope of his employment in creating

a hostile work environment.     In pure hostile work environment

cases, therefore, Steele generally will govern employer liability.14

D. Indirect Liability of City for Hostile Environment Sexual
    Harassment.


     14
      The only other possible ground for the City's direct
liability would be that Terry and Silverman were aided in
accomplishing the harassment by the existence of the agency
relationship. See Sparks, 830 F.2d at 1559-60 (citing
Restatement (Second) of Agency § 219(2)(d)). This basis for
direct liability—like direct liability for acts within the scope
of employment—typically occurs only in quid pro quo harassment
cases. For example, in Sparks, the evidence showed that the
harasser used the authority delegated to him by the company to
assist him in the harassment; he repeatedly reminded the victim
that he could fire her if she refused his advances. Id. at 1560.
See also Steele, 867 F.2d at 1317 (limiting holding of Sparks to
situations involving both quid pro quo and hostile environment
harassment). However, even in a hostile environment case, the
existence of the agency relationship may aid in accomplishing the
harassment. See, e.g., Gary v. Long, 59 F.3d at 1397; Karibian
v. Columbia University, 14 F.3d at 780. We therefore examine
whether the district court's holding may be affirmed on this
ground.

          The evidence does not support a finding that Terry and
     Silverman were aided, within the meaning of the common law,
     in their harassment of Faragher by their agency relationship
     with the City. As the D.C. Circuit noted, a supervisor is
     always, in a sense, aided in accomplishing the tort by the
     existence of the agency because his responsibilities include
     close proximity to and regular contact with the victim.
     Gary v. Long, 59 F.3d at 1397. However, the common law rule
     does not use "aided" in such a broad sense. Rather, the
     employer is liable only if the harassment is accomplished by
     an instrumentality of the agency or through conduct
     associated with the agency status. Id. In Vance, for
     example, although the supervisor's conduct was egregiously
     offensive, it could be viewed as conduct associated with the
     agency status in that it was purportedly meant to increase
     productivity. Here, however, the offensive remarks,
     gestures, and touching cannot reasonably be viewed as
     conduct associated with Terry's and Silverman's status as
     agents of the City.
      The district court found that the City had no actual knowledge

of the sexual harassment but had constructive knowledge due to the

harassment's pervasiveness.          The City contends that the district

court's finding that the City had constructive notice of the

harassment is clearly erroneous and, therefore, that the City may

not   be   held    indirectly   liable   for    the   harassment.     Faragher

responds    that    the   district    court's    finding   that     the   sexual

harassment was severe and pervasive enough to infer the City's

knowledge is not clearly erroneous.

       An employer is indirectly liable for hostile work environment

sexual harassment if the employer knew or should have known of the

harassment and failed to take prompt remedial action.               Steele, 867

F.2d at 1316;      Vance, 863 F.2d at 1512;       Henson, 682 F.2d at 905.15

A plaintiff can prove an employer's knowledge of harassment by

showing that she complained to higher management.            Vance, 863 F.2d

at 1512;    Huddleston, 845 F.2d at 904.          The district court found

that Faragher did not complain to higher management at the City.

While several lifeguards complained to Lieutenant Gordon, the

district court found that he did not rank as higher management in

the City and, therefore, that notice to him should not be imputed

to the City.16

      15
      Agency principles are the source of indirect employer
liability as well as direct employer liability. If an employer
knows or should know of sexual harassment and fails to remedy the
situation, then the employer is liable for its own negligence.
See Hirase-Doi, 61 F.3d at 783; Bouton, 29 F.3d at 106-07.
      16
      In its discussion of the City's direct liability for
Terry's and Silverman's conduct, however, the court held that
Gordon's knowledge of Terry's and Silverman's conduct provides a
basis for holding the City liable. This was error. For the City
to be directly liable for Gordon's conduct, Gordon must have
     A plaintiff also can prove an employer's knowledge by showing

that the harassment was pervasive enough to charge the employer

with constructive knowledge. Vance, 863 F.2d at 1512; Huddleston,

845 F.2d at 904;   Henson, 682 F.2d at 905.    The district court

believed that its finding that the conduct was sufficiently severe

and pervasive to alter the conditions of Faragher's employment

"supports an inference of knowledge, or constructive knowledge, on

the part of the City regarding Terry's and Silverman's sexual

harassment, making the City indirectly liable for such conduct."

According to the court, the pervasiveness analysis applicable to

finding that the work environment was abusive is the same as the

analysis required to show the employer's knowledge.

     We agree with the district court that the analyses are the

same to the extent that a court must evaluate the totality of the

circumstances both in determining whether the work environment was

abusive and in determining whether the conduct was pervasive enough

to put the employer on notice.   See Vance, 863 F.2d at 1513.   But

we cannot agree with the district court's apparent belief that

simply because conduct is pervasive enough to create an abusive

work environment the employer should be charged with knowledge of

the conduct.   The question of notice to the employer is distinct

from the question of the environment's abusiveness.      Thus, the

district court erred to the extent that it conflated the two

inquiries.

harassed Faragher while acting as the City's agent. However,
Gordon did not harass Faragher; he knew about someone else's
inappropriate conduct. And Gordon did not receive that
information as the City's agent; he received it as someone held
in high repute by his colleagues.
      The question of constructive knowledge is an issue of fact

reviewed for clear error.    Reich, 28 F.3d at 1082.      There may be

cases in which it is difficult to draw the line where conduct

becomes so pervasive that the employer should have known about it.

But this is not such a case.     The district court expressly found

that the City had no knowledge of Terry's and Silverman's conduct.

Neither the district court nor Faragher has pointed to any factual

basis for concluding that the City should have known of their

conduct.   The lifeguards were stationed at a remote location and

had little contact with City officials. The district court clearly

erred in finding that the City's knowledge may be inferred solely

from the fact that the conduct was pervasive enough to create an

abusive work environment.

E.   Constructive Knowledge of    Terry's    Unfitness   Under   Florida
      Negligent Retention Law.

      Finally, Faragher and Ewanchew contend that the district court

erred in finding that, for purposes of their negligent supervision

claims, the City did not have actual or constructive notice of

Terry's conduct.   Our review of the record leads us to agree with

the City that the district court's finding that the City had no

notice of Terry's conduct is not clearly erroneous.

                            VI. CONCLUSION

      We reverse the district court's judgment for Faragher on her

Title VII sexual harassment claim against the City.       In all other

respects, we affirm the district court's judgment.

      AFFIRMED IN PART;   REVERSED IN PART.
