Supreme Court decides sexual harassment constructive discharge case
Today the Court released its opinion in Pennsylvania State Police v. Suders, No. 03-95 (June 14, 2004)
This is the case on the important question of whether a constructive discharge allegedly due to a hostile work environment precludes the employer from relying on the Faragher/Ellerth affirmative defense.
As I expected (and hoped), the Court held that a constructive discharge only has this effect “if the plaintiff quits 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 decision was virtually unanimous (only Thomas dissented, and there were no concurring opinions), which is always nice to see.
For an atmosphere of sexual harassment or hostility to be actionable, . . . the offending behavior “must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” . . . A hostile-environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. . . .
Like the harassment considered in our pathmarking decisions, harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts. Unlike an actual termination, which is always effected through an official act of the company, a constructive discharge need not be. A constructive discharge involves both an employee’s decision to leave and precipitating conduct: The former involves no official action; the latter, like a harassment claim without any constructive discharge assertion, may or may not involve official action. . .
[W]hen an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis . . . calls for extension of the affirmative defense to the employer. As those leading decisions indicate, official directions and declarations are the acts most likely to be brought home to the employer, the measures over which the employer can exercise greatest control. . . Absent “an official act of the enterprise,” . . . as the last straw, the employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force. And as Ellerth and Faragher further point out, an official act reflected in company records–a demotion or a reduction in compensation, for example–shows “beyond question” that the supervisor has used his managerial or controlling position to the employee’s disadvantage. Read more
