Sampling of today’s reporting on yesterday’s Supreme Court harassment decision; some further thoughts on this decision
Here are a few news reports on the decision I reported here yesterday.
Interesting variation in emphasis, to say the least.
From the New York Times: “Rules Are Set for Some Harassment Cases”
(by Linda Greenhouse)
In an important ruling on sexual harassment . . . , the Supreme Court . . . set guidelines for assessing an employer’s liability for working conditions that become so unendurable as to lead a reasonable employee to resign . . .
The court held that an employer could ordinarily defend itself in such a situation by showing that it had adequate procedures in place for reporting harassment but that the employee failed to use those procedures.
But that defense is unavailable . . . if a supervisor or manager had engaged in an “official act” like a demotion or reduction in pay that contributed to the intolerable work environment. Read more
Good reporting. Proper emphasis on case as a victory for employers — affirmative defense is normally available.
On the other hand, look at this misleading headline from Philly.com: “She Can Sue State Cops” (by Nicole Weisenseegan)
Nancy Drew [her namesake] Suders, the feisty Fulton County grandmother who said crotch-grabbing, animal-sex-talking Pennsylvania State cops forced her to quit her dispatcher job
because of their raunchy behavior, just got a big wet kiss from the nation’s highest court.
Yesterday, the U.S. Supreme Court ruled in an 8-1 decision that employees who say they were forced to resign because of sexual harassment can sue their employers. . .
Well, technically this may have been the first time the Supreme Court applied the doctrine of constructive discharge to sex discrimination or sexual harassment, nobody had any real doubt it was potentially applicable, and this was not the issue upon which the Court granted review.
The decision sets a new standard for sexual-harassment cases and clarifies a 1998 ruling [that] . . . said that employers could be held liable, even if top managers didn’t know about the harassment, when it resulted in a “tangible employment action” against the worker like firing or demotion. The Suders decision now includes being forced to resign as a tangible employment action.
This is very misleading. The court held being forced to resign is not a tangible employment action, except in very limited circumstances.
The opinion also means that a jury will finally get to hear from Suders. Ginsburg sent the case back to District Court for trial. Read more
This last point illustrates something we often forget with appellate court and Supreme court decisions: the consequence for the individual parties may be quite different than the significance of the decision for the development of the law.
And finally, from the Indianapolis Star (Knight Ridder Newspapers):“Court delivers mixed message on harassment; It’s now easier for workers to sue, and for employers to defend against suits” (by Stephen Henderson and Larry Fish)
The Supreme Court gave a modest lift Monday to employees who quit over intense sexual harassment and then sue but also said it should be easier for employers to defend themselves against such litigation.
The 8-1 ruling means that Nancy Drew Suders . . .can take her case to a jury. But the state will be permitted to counter Suders’ claims with evidence of its policies against sexual harassment and Suders’ failure to take advantage of them.
The mixed decision had both sides claiming victory Monday.
“We’re pleased,” said Suders’ attorney, Don Bailey of Harrisburg, Pa. “We’re back in federal district court. We’ll get a chance to present our case to a jury.”
Acting Attorney General Jerry Pappert said the court acted in the state’s interests. “This is a precedent-setting decision that will ensure fairness in the workplace for both employees and employers,” Pappert said. “Employers who create the proper procedures for handling inappropriate behavior will not be punished if an employee refuses to use those procedures.” Read more
My additional thoughts are to point out that even where there has been a tangible employment action such as a demotion or reduction in pay, coupled with an alleged constructive discharge/resignation, there are defenses available to the employer.
First, that the harassing conduct did not occur as alleged and/or was not sufficiently severe or pervasive or otherwise did not meet the standard for unlawful harassment.
Second, that the tangible employment action was unrelated to the alleged harassing conduct, having been undertaken for legitimate, nondiscriminatory reasons and/or by persons other than the alleged harasser (yes, another reason for independent review of major employment decisions).
Third, that even if the tangible employment action was in retaliation for refusal of sexual advances, it did not meet the standard for constructive discharge: “so intolerable that a reasonable person would have felt compelled to resign.”
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