Supreme Court Rules Employers Are Not Strictly Liable In Constructive Discharge Cases

July 2004

In Pennsylvania State Police v. Suders, decided June 14, 2004, the Supreme Court held that an employer is not strictly liable for supervisor harassment in constructive discharge cases.

In Ellerth and Faragher, two cases decided by the Supreme Court in 1998, the Court held that an employer is strictly liable for supervisor sexual harassment that ends with a "tangible employment action, such as discharge, demotion, or undesirable reassignment."  524 U.S. 742, 765.  When there is no adverse tangible action, an employer may raise an affirmative defense.  To prevail on this defense, the employer must show that it took reasonable steps to prevent and correct sexually harassing behavior.  Such steps may take the form of appropriate policies forbidding sexual harassment and providing a procedure for investigating employee complaints.  Further, the employer must show that the employee unreasonably failed to take advantage of these measures.

Until now, it was unclear whether or not the Ellerth/Faragher affirmative defense applied in the context of constructive discharge.  Constructive discharge occurs where an employee resigns his employment claiming the work environment was intolerable.  To establish constructive discharge, the plaintiff must show that resigning was a reasonable response to that environment.

In Suders, the plaintiff alleged that her male supervisors sexually harassed her.  The harassment allegedly culminated when these supervisors - who were police officers - arrested Suders for stealing her own exam papers.  Suders took the papers when she felt that the supervisors had lied about her score.

After the arrest, Suders resigned and filed suit, alleging that she had been sexually harassed and constructively discharged.  The District Court, referring to Ellerth and Faragher, held that the Pennsylvania State Police was not vicariously liable for the supervisors' actions because Suders failed to avail herself of the State Police's anti-harassment policies.  The Third Circuit disagreed with the District Court.  It held that if Suders was constructively discharged, that discharge constituted a "tangible employment action" and, therefore, the employer was strictly liable.  The employer was not entitled to the Ellerth/Faragher affirmative defense.

Although the Supreme Court agreed that summary judgment was not proper in this case, it overruled the Third Circuit's determination that an employer is never entitled to the Ellerth/Faragher affirmative defense in a constructive discharge case.  The Supreme Court held that employers are entitled to the defense in constructive discharge cases unless the employee quit as a response to a separate tangible employment action, such as a demotion.  The Court explained that a "tangible" employment action is always effected through an official company act, while constructive discharge may not involve official action.

This case highlights, once again, the importance of having proper and effective harassment policies and making certain those policies are followed.  These policies protect employers from liability when individual employees, acting on their own, harass or intimidate other employees.  For help crafting effective policies, implementing policies, training employees, or investigating alleged harassment, please contact a Frost Brown Todd Labor and Employment Attorney.