The Supreme Court, in one of its few decisions involving employment discrimination this term, held that Title VII of the Civil Rights Act of 1964 recognized employer liability for creating working conditions so intolerable that a reasonable person would feel compelled to resign. See Pennsylvania State Police v. Suders, 124 S.Ct. 2342 (2004). However, if the “last straw” that triggers the employee’s resignation did not result from an employer’s “tangible employment action,” the employer may defend itself by proving that (1) it exercised reasonable care to prevent or correct the harassment and (2) the employee failed to take advantage of preventative or corrective opportunities offered by the employer avoid further harm.
The plaintiff in the case, Nancy Suders, worked as a police communications officer with the Pennsylvania State Police (PSP). Ms. Suders alleged that three of her male supervisors subjected her to an onslaught of sexual harassment that did not stop until she resigned. Examples of harassment mentioned in Justice Ruth Bader Ginsberg’s majority opinion included, constant comments by supervisors about people having sex with animals, supervisors’ sexual comments about young girls, and a supervisor’s repeated acts of grabbing his crotch and yelling obscenities in front of Ms. Suders. In June 1998, Ms. Suders approached the PSP’s EEO officer. The EEO officer gave her a contact number, but neither followed up. In August 1998, Ms. Suders contacted the EEO officer in order to file a complaint because the harassment continued to a point that she became afraid of her supervisors. Unfortunately, the EEO officer appeared insensitive to Ms. Suders’ plight and did not tell her how to obtain the appropriate complaint form. Two days after Ms. Suders attempted to file her EEO complaint, her supervisors arrested her for theft. After being detained, Ms. Suders tendered her resignation. The PSP never brought theft charges against her.
Typically, courts treat a constructive discharge the same as a formal discharge if the employee made a reasonable decision to resign because of unendurable working conditions. In the Suders decision, the Supreme Court agreed with the Equal Employment Opportunity Commission and various lower courts in concluding that a claim of constructive discharge was actionable under Title VII. If the “last straw” precipitating an employee’s resignation involved a “tangible employment action” by the employer (e.g. significant change in employment status, denial of promotion, reassignment with change in responsibilities, or a change in benefits), the employer is strictly liable. However, if the employee resigned without the employer having taken a tangible employment action against the employee, the employer may assert affirmative defenses.
The defenses available to employers in hostile work environment claims were outlined in the Supreme Court’s landmark cases of Faragher v. Boca Raton, 118 S.Ct. 2275 (1998), and Burlington Industries Inc. v. Ellerth, 118 S.Ct 2257 (1998). Under Faragher and Ellerth, an employer can shield itself from liability by proving that (1) the employer tried to prevent or correct the harassing behavior and (2) the employee failed to take advantage of opportunities offered by the employer to mitigate harm.
The Suders decision is positive because it was the first time that the Supreme Court endorsed a cause of action for constructive discharge under Title VII. However, if the employer has not yet taken an adverse employment action against the employee, the employee needs to engage in formal procedures offered by his or her employer to stop harassing behavior. As federal agencies have established formal EEO procedures, be sure take advantage of the opportunities offered to help correct the harm. Resist the urge to make rash decisions, such as resigning, before seeking legal adv
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