Supreme Court Allows Ellerth/Faragher Affirmative Defense in Certain "Constructive Discharge" Claims

Thursday, July 1, 2004
by Jackson Lewis

In an 8-1 decision, the U.S. Supreme Court held June 14, 2004 that a claim of constructive discharge is not necessarily an "adverse action" which would always preclude the employer from asserting the Ellerth/Faragher affirmative defense under Title VII of the 1964 Civil Rights Act. Pennsylvania State Police v. Nancy Drew Suders.

Specifically the Supreme Court held:
  • Title VII encompasses employer liability for a constructive discharge. (The Supreme Court had not previously recognized constructive discharge as a viable claim under Title VII although lower courts had.)
  • To establish "constructive discharge" in a hostile environment claim the plaintiff must prove that she was the victim of a hostile work environment and that "the abusive working environment became so intolerable that her resignation qualified as a fitting response."
  • The employer may avoid liability if it can prove "(1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus."
  • A plaintiff may avoid the affirmative defense to a claim of constructive discharge if she can show that she quit "in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions."      

The plaintiff-respondent Nancy Drew Suders alleged sexually harassing conduct by her supervisors, officers of the Pennsylvania State Police (PSP), of such severity that she was forced to resign. Suders commenced work for the PSP in March 1998.

Suders alleged that her male supervisors subjected her to repeated offensive sexual comments and gestures during the course of her employment with the PSP.

In June 1998, after an incident where Suders was accused of taking a missing accident file home with her, Suders approached an equal employment opportunity officer and told her she "might need some help." The officer gave Suders her telephone number, but neither woman followed up on the conversation. Two months later, in August 1998, Suders contacted the EEO officer again. Suders told the officer that she was being harassed and was afraid. The officer told Suders to file a complaint, but did not tell her how to obtain the necessary form. Suders felt that the officer's response was insensitive and unhelpful.

Two days later, Suders' supervisors arrested her for theft and she resigned from the PSP. The arrest was over the alleged theft of some exams. Suders had taken a computer-skills exam to satisfy a PSP job requirement several times. Her supervisors had told her she failed the exams. Suders discovered the exams in a set of drawers in the women's locker room and she concluded that the exams had never been graded. Suders considered the tests her property and, therefore, she took them.

Once the supervisors discovered that the tests were missing, they dusted the drawer with a theft-detection powder that turns hands blue when touched. When Suders attempted to return the tests, her hands turned blue. The supervisors apprehended her, handcuffed her, photographed her, and brought her to an interrogation room and read Suders her Miranda rights. After this incident, Suders resigned. She was never charged with a crime.

Procedural History

In September 2000, Suders sued the PSP in Federal District Court, alleging, inter alia, that she was subjected to sexual harassment and constructively discharged in violation of Title VII. The District Court granted the state's motion for summary judgment, finding that although Suders established an actionable hostile environment; the employer effectively defended itself by asserting the Ellerth/Faragher defense and showing that Suders never gave the employer the chance to respond to her complaints. The District Court did not address Suders' constructive discharge claim.

The Third Circuit reversed and remanded the case. The appeals court found that Suders had presented evidence sufficient for a trier of fact to conclude that supervisors had engaged in a pervasive pattern of sexual harassment. It also held that "genuine issues of material fact existed concerning the effectiveness of the PSP's 'program . . . to address sexual harassment claims.'" It further held that a constructive discharge, when proved, constitutes a tangible job action that precludes the employer from asserting the Ellerth/Faragher defense.

Supreme Court Opinion

The Supreme Court granted certiorari to resolve the disagreement among the Circuits on "the question whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes assertion of the affirmative defenses articulated in Ellerth and Faragher."

Justice Ruth Bader Ginsburg wrote the majority opinion. Justice Clarence Thomas dissented.

Justice Ginsburg noted that the Supreme Court had not previously recognized that a constructive discharge claim could give rise to Title VII liability, but the Courts of Appeals have long recognized constructive discharge claims in a wide range of Title VII cases. The Court held that they "agree with the lower courts and the EEOC that Title VII encompasses employer liability for a constructive discharge". In order to establish constructive discharge, the plaintiff would have to show "that the abusive working environment became so intolerable that her resignation qualified as a fitting response."

This case, Ginsburg said, involves a "subset" of Title VII constructive discharge claims: constructive discharge attributable to a hostile working environment caused by a supervisor. Absent a "tangible employment action," she concluded, the Ellerth/Faragher defense is available to the employer whose supervisors are charged with harassment that leads to a resignation.

In Faragher and Ellerth, the Court looked to agency principles and decided that the employer can be liable for harassing acts of the supervisor when the supervisor is aided in accomplishing the acts by the existence of the employment relationship.

Ginsburg reasoned that constructive discharge claims are unique because "harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company actions. Unlike actual termination, which is always effected though an official act of the company, a constructive discharge need not be." Moreover, unless an official act of the employer is "the last straw, the employer would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force."

An official act reflected in company records, i.e., a demotion or pay reduction, shows "beyond question" that the supervisor used his or her management position to the employee's disadvantage, she said. "Absent such an official act, the extent to which the supervisor's misconduct has been aided by the agency relation ... is less certain. That uncertainty, our precedent establishes, justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable."

The Third Circuit erred, said the High Court, when it created a bright line test holding that the affirmative defense would be eliminated in all hostile-environment constructive discharge cases, but retained in ordinary hostile environment claims. "That placement of the line, anomalously, would make the graver claim of hostile-environment constructive discharge easier to prove than its lesser included component, hostile work environment," Justice Ginsburg wrote.

In Justice Thomas's dissent he criticized the way the Court defined "constructive discharge." Thomas noted that for the purposes of Title VII litigation, courts generally require a showing that the employer deliberately rendered the employee's working conditions intolerable, thus forcing the employee to quit. However, the majority does away with the intent requirement.

Thomas argued that under the majority ruling an employer can be held liable under Title VII for constructive discharge brought about by a hostile working environment created by a supervisor, even if there was no adverse job action. It makes no sense to view a constructive discharge as equivalent to an actual discharge under these circumstances. Thomas argued that the employer should be liable only if the plaintiff proves the employer was negligent in permitting the supervisor's conduct to occur. Since Suders did not show an adverse job action was taken because of her sex, or that the employer knew or should have known of the alleged harassment, her case should be dismissed.

Future Considerations

The good news is that an employer maintains the right to assert the affirmative defense in matters where the plaintiff is asserting constructive discharge. Employers, therefore, should continue to promulgate anti-harassment policies and encourage reporting of complaints and prompt investigation.

The bad news is that without a bright line test there is uncertainty and, therefore, more litigation. Specifically, it is unclear what could constitute an "official action." Presumably, it is less than an "adverse job action." Ginsburg contemplated that it would be an action documented in company records. There is no other guidance. For example, the Court does not even hold whether Suders was subject to "official action." Justice Ginsburg merely noted in a footnote that "[a]lthough most of the discriminatory behavior Suders alleged involved unofficial conduct, the events surrounding her computer-skills exams ... were less obviously unofficial."

The other potentially negative aspect of this case, as noted by Justice Thomas in his dissent, is the apparent elimination of the intent requirement to prove constructive discharge. Although, Justice Ginsburg limited her opinion to a "subset" of constructive discharge claims, i.e., those arising from a hostile work environment, plaintiffs' attorneys will probably attempt to argue that the intent requirement is no longer necessary for any constructive discharge claim.
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