Pennsylvania
Nancy Suders worked for the Pennsylvania State Police (PSP). During that time she was allegedly subjected to a continuous barrage of sexual harassment. Eventually Suders resigned from the force and sued PSP alleging she had been subjected to sexual harassment and constructively discharged in violation of Title VII of the Civil Rights Act of 1964. The district court granted summary judgment for PSP. The Third Circuit reversed and remanded the case for trial. The Supreme Court then accepted certiorari.
The Court held that Title VII encompasses employer liability for a constructive discharge. The Court explained constructive discharge requires more than establishing a hostile work environment. For the former, the offending conduct must be sufficiently severe or pervasive to alter the victim’s employment conditions and create an abusive working environment. For the latter, by contrast, the employee must show that the abusive working environment became so intolerable that resignation qualified as a fitting response. This is an objective inquiry: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?
Next, the Court reviewed whether an employer could assert the Ellerth/Faragher affirmative defense to avoid liability in response to a constructive discharge claim. An employer establishs the affirmative defense by showing both (1) it has a readily accessible and effective policy for reporting and resolving complaints of sexual harassment and (2) the plaintiff unreasonably failed to avail herself of the employer-provided remedial mechanism. In Ellerth/Faragher, the Court advised that the defense is not available where the hostile work environment culminates in a tangible employment action (e.g., demotion, termination, reduction in pay). In that instance, the employer is strictly liable. Where there is no tangible employment action, however, the defense is available.
The Court held that where a constructive discharge results from an official company act, the affirmative defense is not available, but where it can be asserted that the discharge does not result from an official company act, the affirmative defense is available. The Court explained that while a termination always results from an official company act, a constructive discharge may or may not involve official action. “When it does not, the extent to which the agency relationship aided the supervisor’s misconduct is less certain, and that uncertainty justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable.”
The standards set forth in Suders were recently examined and applied in McPherson v. City of Waukegan, 2004 WL 1784491 (7th Cir., August 11, 2004)