Category Personnel/Employment
Title Constructive Discharge Ruled a Tangible Employment Action
Preview Constructive Discharge Ruled a Tangible Employment Action

Constructive Discharge Ruled a Tangible Employment Action

In 1998, the U.S. Supreme Court ruled in two landmark cases, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, that employers are strictly liable—meaning there is absolutely no defense—when sexual harassment by a supervisor involves a tangible employment action (such as discharge, demotion, or denial of promotion), even if the employer's senior management was unaware that the harassment took place. However, in the absence of a tangible employment action, employers can defend themselves by proving two things: (1) they exercised reasonable care to prevent and promptly correct any sexual harassment, and (2) the employee who filed the claim unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer, or otherwise failed to avoid harm.

The Equal Employment Opportunity Commission and the courts have applied the two-part affirmative defense not only in sexual harassment cases, but also in racial, ethnic, religious, and other unlawful harassment cases—even whistle-blower harassment cases. But the lower courts have differed as to whether constructive discharge constitutes a tangible employment action—a conclusion that would make the affirmative defense unavailable to employers. In Pennsylvania State Police v. Suders, the U.S. Supreme Court had the chance to settle this legal issue.

Nancy Suders was employed as a communications operator by the Pennsylvania State Police (PSP), but she resigned after only five months. She claimed that she was constructively discharged—meaning her working environment was so hostile that she was forced to resign. She claimed her male bosses told dirty jokes, made sexually provocative gestures toward her, and prodded her to perform sexual acts. Her complaints to the department's EEO officer were ignored. Several times, Suders had taken a computer-skills exam to satisfy a PSP job requirement. Each time, her supervisors told her she had failed. One day Suders came upon her exams in a set of drawers in the women's locker room. She concluded that her supervisors had never forwarded the tests for grading and that their reports of her failures were false. Regarding the tests as her property, Suders removed them from the locker room after concluding that the supervisors had falsely reported her repeated failure, when in fact the exams were never forwarded for grading. When the police discovered that the exam were missing, they detained and handcuffed Suders at the office, photographed her, read her rights to her, and questioned her, but they never charged her with any wrongdoing. During the interrogations, when her boss accused her of stealing her own computer-skills exam papers, she resigned.

Suders filed a lawsuit in U.S. District Court alleging sexual harassment, which is a violation of Title VII of the Civil Rights Act of 1964. The trial court dismissed the claim, finding that, although her allegations were sufficient to warrant a jury trial, she was not entitled to one because she had not formally reported the harassment to her employer. Basically the PSP was not held vicariously liable for the supervisors' bad conduct.

On appeal, the U.S. Court of Appeals for the Third Circuit (covering Delaware, Pennsylvania, and New Jersey) reversed the ruling. They held that when the facts support a claim of constructive discharge—which the court determined to be a tangible employment action—the employer is not entitled to defend on the ground that the employee failed to file an internal complaint (the Ellerth/Faragher affirmative defense that employers try to use).

Because there was a disagreement between the various courts of appeal on this issue, the U.S. Supreme Court took up the case. In an 8-1 decision in June 2004, the justices held that an employer may invoke the Ellerth/Faragher defense in a constructive discharge claim involving supervisory harassment unless a supervisor's "official act" precipitated the constructive discharge. In determining the availability of the affirmative defense, the Supreme Court has commanded lower courts judge whether the "last straw" was an "official act of the enterprise." If an employee's resignation was not prompted by his or her demotion, denial of a promotion, reassignment with significantly different responsibilities, a significant reduction in benefits, or other significant change in employment status, the employer can defend on the grounds that the employee did not give it the opportunity to solve the problem before the employee quit.

[Editor's note: In this case the boorish behavior by coworkers would be examples of a hostile environment. The lying by supervisors about her exam results, the handcuffing, and the interrogation might be considered by a court to be "official acts" prompting Suders' resignation. Further court proceedings will now decide. Pennsylvania State Police v. Nancy Drew Suders, No. 03-95]

Bottom line: Constructive discharge is now recognized as a tangible employment action that can be litigated under Title VII, but not every hostile work environment transforms an employee's resignation into a constructive discharge. If boorish actions by coworkers created a hostile environment that led to the employee resignation, the employer may use the Ellerth/Faragher defense to try to win the case.

The Ellerth/Faragher defense allows employers to defend themselves by proving two things:

  1. they exercised reasonable care to prevent (such as thorough antiharassment policies) and promptly correct any sexual harassment complaints, and
  2. the employee who filed the claim unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer, or otherwise failed to avoid harm.

However, if an "official act" by a supervisor was part of the hostility that led to the resignation, the employer loses the opportunity to use that defense.

ACSI urges administrators and boards to take any harassment allegation seriously and to conduct thorough investigations of the allegation(s) with guidance from your school's attorney.

LLU 17.3

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.

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