MEYER v. HOLLEY et al.

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280 OCTOBER TERM, 2002
Syllabus
MEYER v. HOLLEY et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 01–1120. Argued December 3, 2002—Decided January 22, 2003
The Fair Housing Act forbids racial discrimination in respect to the sale
or rental of a dwelling. 42 U. S. C. §§ 3604(b), 3605(a). Respondent
Holleys, an interracial couple, tried to buy a house listed for sale by
Triad, a real estate corporation. A Triad salesman is alleged to have
prevented the Holleys from buying the house for racially discriminatory
reasons. After filing suit in federal court against the salesman and
Triad, the Holleys filed a separate suit against petitioner Meyer, Triad’s
president, sole shareholder, and licensed “officer/ broker,” claiming that
he was vicariously liable in one or more of these capacities for the sales-
man’s unlawful actions. The District Court consolidated the lawsuits
and dismissed the claims against Meyer because (1) it considered them
vicarious liability assertions, and (2) it believed that the Fair Housing
Act did not impose personal vicarious liability upon a corporate officer
or a “designated officer/ broker.” In reversing, the Ninth Circuit in ef-
fect held that the Act imposes strict liability principles beyond those
traditionally associated with agent/principal or employee/employer
relationships.
Held: The Act imposes liability without fault upon the employer in accord-
ance with traditional agency principles, i. e., it normally imposes vicari-
ous liability upon the corporation but not upon its officers or owners.
Pp. 285–292.
(a) Although the Act says nothing about vicarious liability, it is none-
theless well established that it provides for such liability. The Court
has assumed that, when Congress creates a tort action, it legislates
against a legal background of ordinary tort-related vicarious liability
rules and consequently intends its legislation to incorporate those rules.
Traditional vicarious liability rules ordinarily make principals or em-
ployers vicariously liable for the acts of their agents or employees in
the scope of their authority or employment. E. g., Burlington Indus-
tries, Inc. v. Ellerth, 524 U. S. 742, 756. Absent special circumstances,
it is the corporation, not its owner or officer, who is the principal or
employer subject to vicarious liability for the torts of its employees or
agents. The Ninth Circuit’s holding that the Act made corporate own-
ers and officers liable for an employee’s unlawful acts simply because
they controlled (or had the right to control) that employee’s actions is

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Syllabus
rejected. For one thing, Congress said nothing in the Act or in the
legislative history about extending vicarious liability in this manner.
And such silence, while permitting an inference that Congress intended
to apply ordinary background tort principles, cannot show that it in-
tended to apply an unusual modification of those rules. This Court has
applied unusually strict rules only where Congress has specified that
such was its intent. See, e. g., United States v. Dotterweich, 320 U. S.
277, 280–281. For another thing, the Department of Housing and
Urban Development (HUD), the agency primarily charged with the
Act’s implementation and administration, has specified that ordinary vi-
carious liability rules apply in this area, and the Court ordinarily defers
to an administering agency’s reasonable statutory interpretation, e. g.,
Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467
U. S. 837, 842–845; Skidmore v. Swift & Co., 323 U. S. 134, 140. Finally,
no convincing argument supports the Ninth Circuit’s decision to apply
nontraditional vicarious liability principles. It erred in relying on lan-
guage in a then-applicable HUD regulation, which, taken as a whole,
says that ordinary, not unusual, liability rules apply. And the holdings
in cases from other Circuits that the Ninth Circuit cited do not support
the kind of nontraditional liability that it applied, nor does the language
of those cases provide a convincing rationale for the Ninth Circuit’s con-
clusions. Pp. 285–289.
(b) Nothing in the Act’s language or legislative history supports the
existence of a corporate owner’s or officer’s “nondelegable duty” not to
discriminate. Such a duty imposed on a principal would “go further”
than the vicarious liability principles discussed thus far to create liabil-
ity although the principal has done everything that could reasonably be
required of him, and irrespective of whether the agent was acting with
or without authority. In the absence of legal support, the Court cannot
conclude that Congress intended, through silence, to impose a special
duty of protection upon individual officers or owners of corporations—
who are not principals (or contracting parties) in respect to the corpora-
tion’s unlawfully acting employee. Neither does it help to characterize
the Act’s objective as an overriding societal priority. The complex
question of which one of two innocent people must suffer, and when,
should be answered in accordance with traditional principles of vicar-
ious liability—unless Congress has instructed the courts differently.
Pp. 289–291.
(c) The Court does not address respondents’ remaining contentions
because they were not considered by the Court of Appeals. The Ninth
Circuit remains free on remand to consider any such arguments that
were properly raised. Pp. 291–292.
258 F. 3d 1127, vacated and remanded.

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282 MEYER v. HOLLEY
Opinion of the Court
Breyer, J., delivered the opinion for a unanimous Court.
Douglas G. Benedon argued the cause for petitioner.
With him on the briefs was Gerald M. Serlin.
Robert G. Schwemm argued the cause for respondents.
With him on the brief were Elizabeth Brancart, Christopher
Brancart, and Greg Alexanian.
Malcolm L. Stewart argued the cause for the United
States as amicus curiae urging affirmance. With him on
the brief were Solicitor General Olson, Assistant Attor-
ney General Boyd, Deputy Solicitor General Clement, and
David K. Flynn.*
Justice Breyer delivered the opinion of the Court.
The Fair Housing Act forbids racial discrimination in
respect to the sale or rental of a dwelling. 82 Stat. 81,
42 U. S. C. §§ 3604(b), 3605(a). The question before us is
whether the Act imposes personal liability without fault
upon an officer or owner of a residential real estate corpora-
tion for the unlawful activity of the corporation’s employee
or agent. We conclude that the Act imposes liability with-
out fault upon the employer in accordance with traditional
agency principles, i. e., it normally imposes vicarious liability
upon the corporation but not upon its officers or owners.
I
For purposes of this decision we simplify the background
facts as follows: Respondents Emma Mary Ellen Holley and
*Briefs of amici curiae urging reversal were filed for the California
Association of Realtors by June Babiracki Barlow and Neil Kalin; for the
National Association of Home Builders by Christopher G. Senior; and for
the National Association of Realtors by Laurene K. Janik and Ralph W.
Holmen.
Briefs of amici curiae urging affirmance were filed for the International
Association of Official Human Rights Agencies by Bruce V. Spiva and
Jessie K. Liu; and for the National Fair Housing Alliance et al. by John
P. Relman, Meera Trehan, and Virginia A. Seitz.

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David Holley, an interracial couple, tried to buy a house in
Twenty-Nine Palms, California. A real estate corporation,
Triad, Inc., had listed the house for sale. Grove Crank, a
Triad salesman, is alleged to have prevented the Holleys
from obtaining the house—and for racially discriminatory
reasons.
The Holleys brought a lawsuit in federal court against
Crank and Triad. They claimed, among other things, that
both were responsible for a fair housing law violation. The
Holleys later filed a separate suit against David Meyer,
the petitioner here. Meyer, they said, was Triad’s presi-
dent, Triad’s sole shareholder, and Triad’s licensed “officer/
broker,” see Cal. Code Regs., tit. 10, § 2740 (1996) (formerly
Cal. Admin. Code, tit. 10, § 2740) (requiring that a corpora-
tion, in order to engage in acts for which a real estate license
is required, designate one of its officers to act as the licensed
broker); Cal. Bus. & Prof. Code Ann. §§ 10158, 10159, 10211
(West 1987). They claimed that Meyer was vicariously lia-
ble in one or more of these capacities for Crank’s unlawful
actions.
The District Court consolidated the two lawsuits. It dis-
missed all claims other than the Fair Housing Act claim
on statute of limitations grounds. It dismissed the claims
against Meyer in his capacity as officer of Triad because (1) it
considered those claims as assertions of vicarious liability,
and (2) it believed that the Fair Housing Act did not impose
personal vicarious liability upon a corporate officer. The
District Court stated that “any liability against Meyer as an
officer of Triad would only attach to Triad,” the corporation.
App. 31. The court added that the Holleys had “not urged
theories that could justify reaching Meyer individually.”
Ibid. It later went on to dismiss for similar reasons claims
of vicarious liability against Meyer in his capacity as the
“designated officer/ broker” in respect to Triad’s real estate
license. Id., at 52–55.

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The District Court certified its judgment as final to permit
the Holleys to appeal its vicarious liability determinations.
See Fed. Rule Civ. Proc. 54(b). The Ninth Circuit reversed
those determinations. 258 F. 3d 1127 (2001). The Court of
Appeals recognized that “under general principles of tort
law corporate shareholders and officers usually are not held
vicariously liable for an employee’s action,” but, in its view,
“the criteria for the Fair Housing Act” are “different.” Id.,
at 1129. That Act, it said, “specified” liability “for those who
direct or control or have the right to direct or control the
conduct of another”—even if they were not at all involved
in the discrimination itself and even in the absence of any
traditional agent/principal or employee/employer relation-
ship, id., at 1129, 1131. Meyer, in his capacity as Triad’s
sole owner, had “the authority to control the acts” of a Triad
salesperson. Id., at 1133. Meyer, in his capacity as Triad’s
officer, “did direct or control, or had the right to direct or
control, the conduct” of a Triad salesperson. Ibid. And
even if Meyer neither participated in nor authorized the dis-
crimination in question, that “control” or “authority to con-
trol” is “enough . . . to hold Meyer personally liable.” Ibid.
The Ninth Circuit added that, for similar reasons, Meyer,
in his capacity as Triad’s license-related officer/ broker, was
vicariously liable for Crank’s discriminatory activity. Id.,
at 1134–1135.
Meyer sought certiorari. We granted his petition, 535
U. S. 1077 (2002), to review the Ninth Circuit’s holding that
the Fair Housing Act imposes principles of strict liability
beyond those traditionally associated with agent/principal
or employee/employer relationships. We agreed to decide
whether “the criteria under the Fair Housing Act . . . are
different, so that owners and officers of corporations” are
automatically and “absolutely liable for an employee’s or
agent’s violation of the Act”—even if they did not direct or
authorize, and were otherwise not involved in, the unlawful
discriminatory acts. Pet. for Cert. i.

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II
The Fair Housing Act itself focuses on prohibited acts. In
relevant part the Act forbids “any person or other entity
whose business includes engaging in residential real estate-
related transactions to discriminate,” for example, because
of “race.” 42 U. S. C. § 3605(a). It adds that “[p]erson”
includes, for example, individuals, corporations, partner-
ships, associations, labor unions, and other organizations.
§ 3602(d). It says nothing about vicarious liability.
Nonetheless, it is well established that the Act provides
for vicarious liability. This Court has noted that an action
brought for compensation by a victim of housing discrimina-
tion is, in effect, a tort action. See Curtis v. Loether, 415
U. S. 189, 195–196 (1974). And the Court has assumed that,
when Congress creates a tort action, it legislates against a
legal background of ordinary tort-related vicarious liability
rules and consequently intends its legislation to incorporate
those rules. Monterey v. Del Monte Dunes at Monterey,
Ltd., 526 U. S. 687, 709 (1999) (listing this Court’s precedents
that interpret Rev. Stat. § 1979, 42 U. S. C. § 1983, in which
Congress created “a species of tort liability,” “in light of the
background of tort liability” (internal quotation marks omit-
ted)). Cf. Astoria Fed. Sav. & Loan Assn. v. Solimino, 501
U. S. 104, 108 (1991) (“Congress is understood to legislate
against a background of common-law . . . principles”); United
States v. Texas, 507 U. S. 529, 534 (1993) (“In order to abro-
gate a common-law principle, the statute must ‘speak di-
rectly’ to the question addressed by the common law”).
It is well established that traditional vicarious liability
rules ordinarily make principals or employers vicariously lia-
ble for acts of their agents or employees in the scope of their
authority or employment. Burlington Industries, Inc. v.
Ellerth, 524 U. S. 742, 756 (1998) (“An employer may be liable
for both negligent and intentional torts committed by an em-
ployee within the scope of his or her employment”); New Or-
leans, M., & C. R. Co. v. Hanning, 15 Wall. 649, 657 (1873)

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(“The principal is liable for the acts and negligence of the
agent in the course of his employment, although he did not
authorize or did not know of the acts complained of ”); see
Rosenthal & Co. v. Commodity Futures Trading Comm’n,
802 F. 2d 963, 967 (CA7 1986) (“ ‘respondeat superior’ . . . is
a doctrine about employers . . . and other principals”); Re-
statement (Second) of Agency § 219(1) (1957) (Restatement).
And in the absence of special circumstances it is the cor-
poration, not its owner or officer, who is the principal or
employer, and thus subject to vicarious liability for torts
committed by its employees or agents. 3A W. Fletcher,
Cyclopedia of the Law of Private Corporations § 1137,
pp. 300–301 (rev. ed. 1991–1994); 10 id., § 4877 (rev. ed. 1997–
2001). The Restatement § 1 specifies that the relevant
principal/agency relationship demands not only control (or
the right to direct or control) but also “the manifestation of
consent by one person to another that the other shall act on
his behalf . . . , and consent by the other so to act.” (Empha-
sis added.) A corporate employee typically acts on behalf
of the corporation, not its owner or officer.
The Ninth Circuit held that the Fair Housing Act imposed
more extensive vicarious liability—that the Act went well
beyond traditional principles. The Court of Appeals held
that the Act made corporate owners and officers liable for
the unlawful acts of a corporate employee simply on the basis
that the owner or officer controlled (or had the right to con-
trol) the actions of that employee. We do not agree with
the Ninth Circuit that the Act extended traditional vicarious
liability rules in this way.
For one thing, Congress said nothing in the statute or in
the legislative history about extending vicarious liability in
this manner. And Congress’ silence, while permitting an
inference that Congress intended to apply ordinary back-
ground tort principles, cannot show that it intended to apply
an unusual modification of those rules.

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Where Congress, in other civil rights statutes, has not ex-
pressed a contrary intent, the Court has drawn the inference
that it intended ordinary rules to apply. See, e. g., Burling-
ton Industries, Inc., supra, at 754–755 (deciding an employ-
er’s vicarious liability under Title VII based on traditional
agency principles); Meritor Savings Bank, FSB v. Vinson,
477 U. S. 57, 72 (1986) (“Congress wanted courts to look to
agency principles for guidance”).
This Court has applied unusually strict rules only where
Congress has specified that such was its intent. See, e. g.,
United States v. Dotterweich, 320 U. S. 277, 280–281 (1943)
(Congress intended that a corporate officer or employee
“standing in responsible relation” could be held liable in that
capacity for a corporation’s violations of the Federal Food,
Drug, and Cosmetic Act of 1938, 52 Stat. 1040, 21 U. S. C.
§§ 301–392); United States v. Park, 421 U. S. 658, 673 (1975)
(discussing, with respect to the Federal Food, Drug, and Cos-
metic Act, congressional intent to impose a duty on “respon-
sible corporate agents”); United States v. Wise, 370 U. S. 405,
411–414 (1962) (discussing 38 Stat. 736, currently 15 U. S. C.
§ 24, which provides: “[W]henever a corporation shall violate
any of the . . . antitrust laws, such violation shall be deemed
to be also that of the individual directors, officers, or agents
of such corporation who shall have authorized, ordered, or
done any of the acts constituting in whole or in part such
violation”); see also 46 U. S. C. § 12507(d) (“If a person, not
an individual, is involved in a violation [relating to a vessel
identification system], the president or chief executive of the
person also is subject to any penalty provided under this
section”).
For another thing, the Department of Housing and Urban
Development (HUD), the federal agency primarily charged
with the implementation and administration of the statute,
42 U. S. C. § 3608, has specified that ordinary vicarious liabil-
ity rules apply in this area. And we ordinarily defer to an
administering agency’s reasonable interpretation of a stat-

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ute. Chevron U. S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U. S. 837, 842–845 (1984); Skidmore v.
Swift & Co., 323 U. S. 134, 140 (1944).
A HUD regulation applicable during the relevant time pe-
riods for this suit provided that analogous administrative
complaints alleging Fair Housing Act violations may be filed
“against any person who directs or controls, or has the
right to direct or control, the conduct of another per-
son with respect to any aspect of the sale . . . of
dwellings . . . if that other person, acting within the
scope of his or her authority as employee or agent of the
directing or controlling person . . . has engaged . . . in
a discriminatory housing practice.” 24 CFR § 103.20(b)
(1999) (repealed) (emphasis added).
See Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91,
107 (1979) (treating administrative actions under 42 U. S. C.
§ 3610 and civil actions under § 3613 as alternative, but paral-
lel, proceedings).
When it adopted the similar predecessor to this regulation
(then codified at 24 CFR § 105.13, see 53 Fed. Reg. 24185
(1988)), HUD explained that it intended to permit a “re-
spondent” (defined at 42 U. S. C. § 3602) to raise in an admin-
istrative proceeding any defense “that could be raised in
court.” 53 Fed. Reg., at 24185. It added that the under-
scored phrase was designed to make clear that “a complaint
may be filed against a directing or controlling person with
respect to the discriminatory acts of another only if the other
person was acting within the scope of his or her authority as
employee or agent of the directing or controlling person.”
Ibid. (emphasis added). HUD also specified that, by adding
the words “acting within the scope of his or her authority as
employee or agent of the directing or controlling person,” it
disclaimed any “intent to impose absolute liability” on the
basis of the mere right “to direct or control.” Ibid.; see 54
Fed. Reg. 3232, 3261 (1989).

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Finally, we have found no convincing argument in support
of the Ninth Circuit’s decision to apply nontraditional vicari-
ous liability principles—a decision that respondents do not
defend and in fact concede is incorrect. See Brief for Re-
spondents 6, 10–11, 43 (conceding that traditional vicarious
liability rules apply); Brief for United States as Amicus Cu-
riae 8, 22. The Ninth Circuit rested that decision primarily
upon the HUD regulation to which we have referred. The
Ninth Circuit underscored the phrase “ ‘or has the right to
direct or contro[l] the conduct of another person.’ ” 258
F. 3d, at 1130. Its opinion did not explain, however, why the
Ninth Circuit did not read these words as modified by the
subsequent words that limited vicarious liability to actions
taken as “ ‘employee or agent of the directing or controlling
person.’ ” Id., at 1131. Taken as a whole, the regulation, in
our view, says that ordinary, not unusual, rules of vicarious
liability should apply.
The Ninth Circuit also referred to several cases decided in
other Circuits. The actual holdings in those cases, however,
do not support the kind of nontraditional vicarious liability
that the Ninth Circuit applied. See Chicago v. Matchmaker
Real Estate Sales Center, Inc., 982 F. 2d 1086 (CA7 1992)
(defendant corporation liable for the acts of its agents; share-
holder directly, not vicariously, liable); Walker v. Crigler, 976
F. 2d 900 (CA4 1992) (owner of rental property liable for the
discriminatory acts of agent, the property’s manager); Marr
v. Rife, 503 F. 2d 735 (CA6 1974) (real estate agency’s owner
liable for the discriminatory acts of his agency’s salesper-
sons, but without statement of whether agency was a corpo-
ration). Nor does the language of these cases provide a con-
vincing rationale for the Ninth Circuit’s conclusions.
The Ninth Circuit further referred to an owner’s or offi-
cer’s “non delegable duty” not to discriminate in light of the
Act’s “overriding societal priority.” 258 F. 3d, at 1131, 1132
(citing Chicago v. Matchmaker Real Estate Sales Center,
Inc., supra, at 1096–1097, and Walker v. Crigler, supra, at

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904–905). And it added that “[w]hen one of two innocent
people must suffer, the one whose acts permitted the wrong
to occur is the one to bear the burden.” 258 F. 3d, at 1132.
“[A] nondelegable duty is an affirmative obligation to en-
sure the protection of the person to whom the duty runs.”
General Building Contractors Assn., Inc. v. Pennsylvania,
458 U. S. 375, 396 (1982) (finding no nondelegable duty under
42 U. S. C. § 1981). Such a duty imposed upon a principal
would “go further” than the vicarious liability principles we
have discussed thus far to create liability “although [the prin-
cipal] has himself done everything that could reasonably be
required of him,” W. Prosser, Law of Torts § 71, p. 470 (4th
ed. 1971), and irrespective of whether the agent was acting
with or without authority. The Ninth Circuit identifies
nothing in the language or legislative history of the Act to
support the existence of this special kind of liability—the
kind of liability that, for example, the law might impose in
certain special circumstances upon a principal or employer
that hires an independent contractor. Restatement § 214;
see 5 F. Harper, F. James, & O. Gray, Law of Torts § 26.11 (2d
ed. 1986); Prosser, supra, § 71, at 470–471. In the absence of
legal support, we cannot conclude that Congress intended,
through silence, to impose this kind of special duty of protec-
tion upon individual officers or owners of corporations—who
are not principals (or contracting parties) in respect to the
corporation’s unlawfully acting employee.
Neither does it help to characterize the statute’s objective
as an “overriding societal priority.” 258 F. 3d, at 1132. We
agree with the characterization. But we do not agree that
the characterization carries with it a legal rule that would
hold every corporate supervisor personally liable without
fault for the unlawful act of every corporate employee whom
he or she has the right to supervise. Rather, which “of two
innocent people must suffer,” ibid., and just when, is a com-
plex matter. We believe that courts ordinarily should deter-
mine that matter in accordance with traditional principles of

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vicarious liability—unless, of course, Congress, better able
than courts to weigh the relevant policy considerations, has
instructed the courts differently. Cf., e. g., Sykes, The Eco-
nomics of Vicarious Liability, 93 Yale L. J. 1231, 1236 (1984)
(arguing that the expansion of vicarious liability or shifting
of liability, due to insurance, may diminish an agent’s incen-
tives to police behavior). We have found no different in-
struction here.
III
A
Respondents, conceding that traditional vicarious liability
rules apply, see supra, at 289, argue that those principles
themselves warrant liability here. For one thing, they
say, California law itself creates what amounts, under ordi-
nary common-law principles, to an employer/employee or
principal/agent relationship between (a) a corporate officer
designated as the broker under a real estate license issued
to the corporation, and (b) a corporate employee/salesperson.
Brief for Respondents 6–8, 13–36. Insofar as this argument
rests solely upon the corporate broker/officer’s right to con-
trol the employee/salesperson, the Ninth Circuit considered
and accepted it. 258 F. 3d, at 1134–1135. But we must re-
ject it given our determination in Part II that the “right
to control” is insufficient by itself, under traditional agency
principles, to establish a principal/agent or employer/
employee relationship.
B
The Ninth Circuit did not decide whether other aspects of
the California broker relationship, when added to the “right
to control,” would, under traditional legal principles and con-
sistent with “the general common law of agency,” Burling-
ton Industries, Inc. v. Ellerth, 524 U. S., at 754 (internal quo-
tation marks omitted), establish the necessary relationship.
But in the absence of consideration of that matter by the
Court of Appeals, we shall not consider it. See Pennsylva-

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nia Dept. of Corrections v. Yeskey, 524 U. S. 206, 212–213
(1998) (“ ‘Where issues [were not] considered by the Court
of Appeals, this Court will not ordinarily consider them’ ”
(quoting Adickes v. S. H. Kress & Co., 398 U. S. 144, 147,
n. 2 (1970))).
Respondents also point out that, when traditional vicari-
ous liability principles impose liability upon a corporation,
the corporation’s liability may be imputed to the corpora-
tion’s owner in an appropriate case through a “ ‘piercing of
the corporate veil.’ ” United States v. Bestfoods, 524 U. S.
51, 63, n. 9 (1998) (quoting United States v. Cordova Chemi-
cal Co. of Michigan, 113 F. 3d 572, 580 (CA6 1997)). The
Court of Appeals, however, did not decide the application of
“veil piercing” in this matter either. It falls outside the
scope of the question presented on certiorari. And we shall
not here consider it.
The Ninth Circuit nonetheless remains free on remand to
determine whether these questions were properly raised
and, if so, to consider them.
* * *
The judgment of the Court of Appeals is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.