Supreme Court Extends Ellerth/Faragher Affirmative Defense To Certain Constructive Discharge Cases

September 8, 2004

On June 14, 2004, the United States Supreme Court issued its opinion in Pennsylvania State Police v. Suder, 124 S.Ct. 2342 (2004), and extended the affirmative defense originally outlined in Burlington Indus., Inc. v. Ellerth and Faragher v. City of Boca Ratonto constructive discharge cases. In Suder, the Court held that an employee's failure to seek recourse under an employer's non-discrimination/non-harassment policy may bar a claim that the employee was forced to resign because of intolerable working conditions.

In Suder, the plaintiff filed a Title VII action alleging that she was subjected to a sexually hostile work environment and constructively discharged. The plaintiff alleged that her supervisors were the primary harassers and sought to hold their employer, the Pennsylvania State Police, vicariously liable for the actions of its agents. The Third Circuit Court of Appeals held that a constructive discharge was always a “tangible employment action,” and therefore, the employer could not raise the Ellerth/Faragher affirmative defense to vicarious liability for sexual harassment by its supervisors.

In its decision, the Supreme Court recognized that constructive discharge claims are actionable under Title VII. However, the Court noted that in order for there to be a situation that amounts to a constructive discharge, the working conditions must be so intolerable that resignation is a “fitting response” for a reasonable person. The Court rejected the contention by Justice Thomas in his dissenting opinion that an employer must intend for an employee to resign before there may be a constructive discharge.

The Court further noted that a constructive discharge involves both a decision by the employee to leave his or her job and some precipitating conduct. The Court distinguished between conduct involving official acts, such as “a humiliating demotion, extreme cut in pay, or transfer to a position in which [the employee] would face unbearable working conditions,” and non-official acts. With respect to official acts, the Court reasoned that the supervisor is using his or her managerial authority to the detriment of the employee. Accordingly, in those situations, the employer is strictly liable if it can be shown that the employee reasonably quit in response to the supervisor's harassing conduct. However, the Court held that when the supervisor's conduct does not involve an official act, the Ellerth/Faragher affirmative defense can be used by the employer. According to the Court, if there is not an official act, such as a demotion or transfer, the employer would have no particular reason to suspect that the employee resignation was due to a potentially improper reason.

The Suder decision stresses the need for employers to be proactive in adopting, distributing and enforcing non-harassment policies. If employers are diligent in following their non-harassment policies, the Ellerth/Faragher affirmative defense can be used to defend the company in certain constructive discharge lawsuits. Suder also emphasizes the need for management and those working in a company's Human Resources department to be on the lookout for illogical or unexplained “official employment actions” such as demotions, transfers or substantial cuts in pay closely followed by the affected employee's resignation. One way to help evaluate and address the reasons for an employee's resignation is for employers to have detailed exit interviews with each departing employee.

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