Off Duty Supreme Court Will Consider Whether Constructive Discharge is a Tangible Employment Action

Volume 2, Issue 18
December 8, 2003

Earlier this year, the United States Court of Appeals for the Third Circuit ruled that a "constructive discharge" is a tangible employment action for purposes of Title VII of the Civil Rights Act of 1964 ("Title VII"). A constructive discharge is the legal term for situations in which employees are forced to resign or otherwise quit their employment due to intolerable conditions. A former employee alleging constructive discharge must prove that he or she suffered harassment or discrimination so intolerable that a reasonable person in the same position would have felt compelled to resign and that his or her decision to resign was reasonable given the totality of the circumstances. In turn, a "tangible employment action" is the legal term used to describe those types of serious job actions taken by a supervisor (such as discharge, demotion, or undesirable reassignment) that, if proven to be true, render an employer strictly liable. The affirmative defense to supervisor harassment cases is only available to employers if a tangible employment action was not taken.

Thus, the Third Circuit's ruling, if upheld, would significantly broaden the scope of potential employer liability for harassment and discrimination claims. On December 1, 2003, the United States Supreme Court agreed to hear the case as the Third Circuit's decision is in direct conflict with decisions by the Second, Sixth and Eighth Circuit Courts. Employers should closely monitor this case and consider asking their trade organizations and other employer associations such as the Society for Human Resource Management to consider filing amicus curiae or "friend of the court" briefs in opposition to the Third Circuit's decision.

Suders v. Easton, No. 01-3512 (3d Cir. Apr. 16, 2003), cert. granted, No. 03-95 (Dec. 1, 2003).

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.