1st Cir. opinion has wise, measured approach on tw…

1st Cir. opinion has wise, measured approach on two key harassment issues; reasonableness of failure to report harassment due to fear of reprisal, and constructive discharge as precluding affirmative defense

Reed v. MBNA Marketing Sys., Inc. (1st Cir. 06/19/03) reversed summary judgment in favor of employer because jury could conclude failure to report alleged harassment and threats was reasonable given plaintiff’s young age and other circumstances. Good discussion of this issue, following statement that “sometimes inaction is reasonable . . . and circuit case law is now emerging”

Reasonable intermediate position on constructive discharge:

“Case law in the Third and Eighth Circuits treats constructive discharge as a tangible employment action; cases in the Second and Sixth Circuits lean the other way. Because the conduct differs from case to case, we see no reason to adopt a blanket rule one way or the other. Here, it is clear to us that the constructive discharge label cannot be used to preclude the affirmative defense; but possibly, on rare facts, it might be appropriate for that purpose.

Nothing is gained by arguing in the abstract about whether a constructive discharge is or is not a discharge; for some purposes or rubrics, it might be so treated . . . , and for others not. What matters is the Supreme Court’s rationale for excluding tangible employment actions from the affirmative defense, namely, that a supervisor who takes official action against an employee should be treated as acting for the employer. Ellerth, 524 U.S. at 761. There might indeed be cases in which official actions by the supervisor–e.g., an extremely dangerous job assignment to retaliate for spurned advances–could make employment intolerable, but nothing like that is present here.”

Although the court avoids an absolute position on constructive discharge, its statements about it align it more with the circuits holding it not a tangible employment action.

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