On June 14, 2004, the U.S. Supreme Court held in a 8-1 decision that an employer may raise an affirmative defense to a plaintiff's claim that she was constructively discharged as a result of alleged harassment by a supervisor. Pennsylvania State Police v. Suders, 542 U.S. __ (2004). In the Suders decision, the Supreme Court rejected the rationale of the U.S. Court of Appeals for the Third Circuit that once employees proved they were constructively discharged, employers would be automatically liable and would lose the affirmative defense it granted employers in its 1998 decisions -- Burlington Indus., Inc. v. Ellerth, 574 U.S. 742 and Faragher v. City of Boca Raton, 524 U.S. 775.
In March 1998, Nancy Drew Suders was hired by the Pennsylvania State Police (PSP) as a police communications operator. She had three male supervisors, including the station commander. According to Ms. Suders, her male supervisors sexually harassed her by subjecting her to repeated offensive sexual comments and gestures during the course of her employment with the PSP.
In June 1998, three months after her hire, Suders approached an equal employment officer and told her that she "might need some help." The EEO 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 and told her that she was being harassed and was afraid. The EEO officer told Suders to file a complaint, but she did not tell her how to obtain the necessary form nor did she provide Suders with any further assistance.
Two days later, Suders' supervisors arrested her for theft and she resigned from the force. The circumstances of Suders' arrest were actually that she had discovered computer-skills exams she had taken to satisfy a PSP job requirement in a set of drawers in the women's locker room. She had taken the test several times and her supervisors repeatedly told her that she had failed. Upon finding the exams, Suders concluded that her supervisors had never forwarded her tests for grading and that they had lied to her about her failures. She regarded the tests as her property and 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 to the drawer, her hands turned blue. Her supervisors apprehended and handcuffed her, photographed her blue hands, and repeatedly questioned her. After the incident, Suders resigned. She was never charged with a crime.
The federal district court granted the state's motion for summary judgment, finding that although Suders' testimony sufficed to permit a trier of fact to conclude that the supervisors had created a hostile work environment, the employer effectively asserted the Ellerth/ Faragher defense by showing that Suders unreasonably failed to avail herself of the PSP's internal procedures for reporting harassment. The Third Circuit reversed and remanded the case, finding that Suders had presented evidence sufficient for a trier of fact to conclude that supervisors had engaged in a pervasive pattern of sexual harassment, but holding that a constructive discharge, when proved, constitutes a tangible job action that precludes the employer from asserting the Ellerth/Faragher defense.
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."
Supreme Court Analysis
Justice Ruth Bader Ginsburg wrote the majority opinion, while Justice Clarence Thomas wrote the sole dissenting opinion. Justice Ginsburg noted that the Supreme Court had not previously recognized that a constructive discharge claim could give rise to Title VII liability, even though many lower courts have long recognized constructive discharge claims in a wide range of Title VII cases. In Suders, the Supreme Court, for the first time, recognized that employers can be liable under Title VII for a constructive discharge.
In Ellerth and Faragher, the Court previously held that where no tangible employment action is taken, the employer may defeat vicarious liability for supervisor harassment by raising as an affirmative defense: 1) that it used reasonable care to prevent and correct harassing conduct; and 2) that the plaintiff unreasonably failed to rely on the employer's preventive or corrective measures before resigning. In analyzing the constructive discharge in the Suders case, the Supreme Court reviewed the theory behind Ellerth and Faragher and looked to agency principlesÑthat is, the Court reasoned that when a supervisor creates a hostile work environment that is not aided by the agency relationship, the employer should be allowed to avoid liability by proving the two elements of the Ellerth/Faragher affirmative defense. Therefore, the Court held that the key issue in Suders and in other constructive discharge cases is whether the constructive discharge was caused by an "official act."
The Court held that "when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysisÉcalls for extension of the affirmative defense to the employer." The Court further explained that unless an official act of the employer is "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." An official act reflected in company records, such as a demotion or reduction in compensation, shows "beyond question" that the supervisor has used his managerial or controlling position to the employee's disadvantage. Absent such an official act, the Court stated, "[T]he extent to which the supervisor's misconduct has been aided by the agency relationÉis less certain." The Court further held, "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 Court rejected the Third Circuit's 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. Justice Ginsburg wrote, "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." However, the Court did not make the restored affirmative defense available in every constructive discharge case. The Court held that the affirmative defense will not be available to employers "if a plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status." Where an "official act" underlies the constructive discharge, the employer is automatically liable, as in the tangible employment action cases. The Court, however, never defines "official act."
In Suders, the Court did not make a determination as to whether Suders was subjected to an "official act," however, it suggests that the conduct alleged by Suders was probably all unofficial, thereby making the affirmative defense available. First, the Court cited with approval a decision by the First Circuit, Reed v. MBNA Marketing Systems, 333 F.3d 27 (1st Cir. 2003), and agreed with the First Circuit's finding that a supervisor's repeated sexual comments and a sexual assault by the supervisor did not involve "official actions." The Court contrasted this with a transfer, for example, which is an official act. The Court stated, "[A]n 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 disadvatage." Moreover, the Court expressly noted in its decision that "most of the discriminatory behavior Suders alleged involved unofficial conduct" (see footnote 11). Although the Court further noted that "the events surrounding her computer-skills exams ... were less obviously unofficial" (see id.), based on the examples cited by the Court, on remand, Suders' allegations that her supervisors purposely hid her exams so that she could not fulfill the job requirements will probably be insufficient to constitute an authorized, official act. Accordingly, the restored affirmative defense will be available to the state, who can avoid liability if it can demonstrate that Suders' efforts to report the conduct was unreasonable.
In Justice Thomas's solitary dissent, he criticized the way the majority defined "constructive discharge." Thomas noted that for 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. Thomas argued that under the majority ruling, the intent requirement is eliminated. Thomas argued that the employer should be liable only if the plaintiff proves the employer was negligent, and in this case, 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.
Caroline Lee is an Associate in the Litigation Department.