U.S. Supreme Court Addresses Whether Constructive Discharge Constitutes a Tangible Employment Action in Supervisior Sexual Harassment Cases

Volume 3, Issue 9
June 14, 2004

Today the U.S. Supreme Court set forth the parameters under which a constructive discharge claim within a supervisor sexual harassment case may preclude an employer from asserting the all-important affirmative defense established by the Court's previous Ellerth and Faragher decisions. (See Preventing Harassment: It's Not Just Sexual -- KZA 5th Labor and Employment Law Seminar).

The case under review, Pennsylvania State Police v. Suders, --- U.S. --- , No. 03-95 (June 14, 2004), involved a female police officer's claims that she resigned her employment in response to the severe sexual harassment she suffered by her supervisors, mostly in the form of sexual comments and gestures. Although the plaintiff reported internally that she was being harassed and was afraid, she never filed an official complaint with her employer. The plaintiff's resignation occurred shortly after her supervisors devised a plan to arrest her for theft of exams she had taken during her employment. When apprehended and questioned, the plaintiff told her supervisors that she wanted to resign. She was allowed to leave, and no charges were brought against her.

The Supreme Court disagreed with the Third Circuit's decision that a constructive discharge constitutes a "tangible employment action" which serves to preclude the affirmative defense in all cases. Rather, the Supreme Court stated that "an official act of the enterprise" is the key to whether a tangible employment action has been taken and thus would render unavailable the affirmative defense. The Supreme Court held, as a result, that the affirmative defense is not available in those cases where the plaintiff quits her job in reasonable response to an employer-sanctioned adverse action which officially changes her employment status or situation (i.e., an extreme cut in pay, a humiliating demotion, or a transfer where working conditions would be unbearable).

This ruling should be hailed as a significant victory for employers, given the limited circumstances under which a constructive discharge claim impacts the availability of an employer's affirmative defense. The plaintiffs' bar was obviously hoping that the inclusion of a constructive discharge claim would automatically knock out the affirmative defense in all cases, a perilous situation the Supreme Court wisely rejected. As always, employers should evaluate any and all employment-related decisions carefully to ensure that they are not inadvertently fueling a likely constructive discharge claim or allowing an improperly-motivated supervisor or manager to effectively continue harassment.

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.