Employer Liability for Constructive Discharge

In one of the final decisions of its 2004 term, the Supreme Court resolved the conflict among the lower courts about whether a constructive discharge qualifies as a tangible employment action which will preclude an employer from asserting the affirmative defense available only in hostile environment harassment cases.  The Court held when an official act of the employer is the basis for the constructive discharge, the employer is strictly liable and may not assert the affirmative defense.  On the other hand, if the resignation is caused by co-worker or unofficial supervisor conduct, then an employer may affirmatively defend the harassment charge by showing both that it had a readily accessible and effective policy for reporting and resolving harassment complaints, and that the plaintiff unreasonably failed to take advantage of the employer’s procedures.  Pennsylvania State Police vs. Suders, No. 03-95 (Sup. Ct. June 14, 2004).

Nancy Suders was subjected to a continuous barrage of harassment from the time she was hired until she resigned.  Among other things, her supervisors made frequent vulgar gestures, including grabbing their genitals, and comments about and requests for oral sex were common.  Suders told the department’s EEO Officer she might need some help, but there was no follow up to that conversation.  Two months later, Suders contacted the EEO officer again complaining of harassment, and the officer suggested Suders file a complaint, but did not tell her how to obtain the necessary form.  Two days later, Suders’ supervisors accused her of theft, and Suders resigned.  The Supreme Court suggested that the theft allegation may have been further harassment rather than a bona fide charge.

The trial court dismissed Suders’ harassment complaint, finding that she was not subject to a tangible employment action, and that she had unreasonably failed to avail herself of the employer’s procedures for reporting harassment.  The Third Circuit reversed, holding that proven constructive discharge is a tangible employment action, which precludes the employer from asserting that the employee failed to take advantage of the employer’s harassment reporting guidelines.

While the Supreme Court agreed with the Third Circuit that a constructive discharge is a tangible employment action, the Court found that the appellate court had gone too far in holding that an employer may never assert an affirmative defense in a constructive discharge case.  Instead, the Court said only in those cases in which the discharge is the result of an official company act is the employer strictly liable. According to the Court, official acts are those such as a humiliating demotion, extreme cut in pay, or transfer to a position with unbearable working conditions.  The Court sent the case back to the trial court for a determination of whether the facts relating to Suders’ resignation constituted a constructive discharge and if so, whether the discharge was the result of official company acts. To establish a constructive discharge, Suders will have to show that the abusive working environment became so intolerable that her resignation was a fitting response.

While this case makes clear that harassment that is so intolerable as to cause a resignation is grounds for a discrimination claim, this case is also a reminder of the importance of having accessible and effective harassment reporting procedures, educating supervisory staff about harassment, and taking appropriate action when supervisors fail to follow company policies.

If you have any questions about this article or need further information, please do not hesitate to contact a member of our Labor & Employment Group.