Supreme Court Clarifies Constructive Discharge in Title VII Harassment Cases



On June 14, 2004 , the United States Supreme Court decision in Pennsylvania State Police v. Suders, addressed the issue of the burden of proof in cases of sexual harassment and constructive discharge asserted under Title VII of the Civil Rights Act of 1964.  Generally in order to state a case for sexual harassment a plaintiff must show that the conduct complained of was so severe or pervasive that it created an abusive working environment.  The Supreme Court found that in order to establish constructive discharge, a plaintiff must additionally show that the abusive environment became so intolerable that resigning was the appropriate response.  The defenses available to an employer in sexual harassment cases are rooted in the 1998 decisions of Burlington Industries, Inc. v. Ellerth, and Faragher v. Boca Raton.  In order to assert an affirmative defense, an employer must show that it installed an accessible and effective policy on sexual harassment and that the plaintiff unreasonably failed to avail him or herself of that policy.  This defense, according to the Court is not available if a person quits in "reasonable response to an employer-sanctioned adverse action" where employment status is changed.  A status change could be a humiliating demotion, extreme pay cut or transfer to unbearable working conditions.

The plaintiff in Suders was hired as a police communications operator, and was subjected to continuous sexual harassment by her three male supervisors until she resigned from the force.  The plaintiff approached the defendant's equal employment opportunity officer indicating that she might need assistance.  She later complained again of harassment and was told to file a complaint, even though the process was not fully explained to her.  Plaintiff subsequently resigned amidst allegations of theft and harassment.

The plaintiff's testimony according to the district court allowed for the conclusion that the supervisors had created a hostile work environment.  However, the court concluded that the defendant was not vicariously liable for the supervisors' conduct.  The court found that the plaintiff failed to avail herself of the internal reporting procedures as she resigned two days after mentioning harassment to an official.  The Third Circuit agreed that there was sufficient evidence for a trier of fact to conclude that the plaintiff's supervisors had engaged in a pattern of sexual harassment that was pervasive and regular.  The Third Circuit found that genuine issues of material fact existed concerning the effectiveness of the defendant's sexual harassment program.  The Third Circuit also found that the district erred in failing to recognize that the plaintiff had stated a claim of constructive discharge due to hostile work environment.

Generally a plaintiff who alleges constructive discharge in violation of Title VII must show harassment or discrimination that is so intolerable that a reasonable person in the same position would have felt compelled to resign and that the decision to resign was reasonable given the totality of the circumstances.  Based on that definition, the Court of Appeals held that "constructive discharge, when proved, constitutes a tangible employment action."  Under Ellerth and Faragher, such a tangible employment action would render an employer strictly liable, eliminating the ability of the employer to utilize the affirmative defense pronounced in those cases. 

The Supreme Court, in an 8-1 decision reversed the Third Circuit ruling.  While the Court found that Title VII encompasses liability for constructive discharge, it fell short of finding a rule of strict liability.  A constructive discharge does not in and of itself amount to a "tangible employment action," according to the Court.  Harassment which leads to a constructive discharge constitutes a "tangible employment action" only when precipitated by an official action of a supervisor.  Thus, resignation after a humiliating demotion or extreme pay cut would lend itself to a finding of strict liability.  Without a "tangible employment action," the affirmative defense established in Faragher and Ellerth is available to employers facing claims for harassment leading to constructive discharge.  The Court found that the official action by the supervisor distinguishes the resignation when finding strict liability. 

While the immediate effects of this decision are unclear, some employees may feel more motivated to leave their jobs instead of pursuing remedies under an employer's harassment policy.  The Suders' decision clarifies the law governing constructive discharges resulting from harassment, and it also serves as an illustration of the importance of sexual harassment policies and procedures in employment.  Continued vigilance in drafting policies that are easily accessible and understandable will be important, as the law governing harassment continues its evolution through the courts.