On June 14, 2004, in Pennsylvania State Police v. Suders, the U.S. Supreme Court decided a sexual harassment case that has important implications for employers. An employer is strictly liable under Title VII of the Civil Rights Act of 1964 when a supervisor's official act of harassment precipitates a constructive discharge.
In this case, the plaintiff, a communications operator, alleged that she was subjected to a continuous barrage of sexually harassing conduct by three of her supervisors, each an officer of the Pennsylvania State Police, and that this conduct was of such severity that she was forced to resign. The conduct by these supervisors included repeated talk to her about sex with animals, repeated gestures simulating oral sex, and obscene gestures as often as five to ten times a night. The plaintiff spoke with the employer's equal employment opportunity officer who handled such complaints, but that contact was not helpful. Additionally, the plaintiff was wrongfully accused of stealing documents by the three supervisors. The plaintiff quit her employment after experiencing this conduct for three months.
In its Suders decision, the Supreme Court continued to follow the course marked by its 1998 decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton. In those cases, the Court distinguished between supervisor harassment unaccompanied by an adverse official act and supervisor harassment accompanied by a tangible employment action. The Court in those cases held that an employer is strictly liable for supervisor harassment that culminates in a tangible employment action such as a discharge, a failure to promote, a demotion, an undesirable reassignment, or a significant change in benefits. However, when no tangible employment action is taken, the employer may defeat vicarious liability by establishing by a preponderance of the evidence the following affirmative defense: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm.
In Suders, the Court determined that Title VII encompasses employer liability for a constructive discharge, including constructive discharge resulting from sexual harassment or a hostile work environment created by a supervisor. An employee who advances a sexual harassment/constructive discharge claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. In outlining a sexual harassment/constructive discharge claim, the Court indicated that an employee must establish: (1) a hostile work environment based upon harassing behavior sufficiently severe or pervasive to alter the conditions of employment, and (2) a constructive discharge based upon an abusive working environment that became so intolerable that the employee's resignation qualified as a fitting response. The Court noted that a sexual harassment/constructive discharge claim may occur through coworker conduct, unofficial supervisory conduct, or official company acts.
When no "tangible employment action" occurs, an employer may defend against such a claim by proving as an affirmative defense: (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the employee unreasonably failed to avail him- or herself of that employer-provided preventative or remedial apparatus. Consistent with Ellerth and Faragher, this affirmative defense is unavailable if an employee resigns in reasonable response to an employer-sanctioned adverse action officially changing his or her employment status or situation, such as by demoting the employee in a humiliating manner, making an extreme cut in pay, or transferring the employee to a position in which he or she would face unbearable work conditions.
Practical Significance
Although employers may understand the necessity of adopting strong anti-harassment policies and encouraging employees to complain when they encounter such conduct, this decision emphasizes the urgency of acting consistently with such policies, taking complaints seriously, and responding promptly and effectively. This Supreme Court decision also reiterates the risk that employers face when supervisors engage in improper, harassing conduct and the importance of taking steps to train supervisors to prevent it. The Court's recognition of constructive discharge in the sexual harassment/discrimination context suggests that the constructive discharge theory is also viable in the context of other protected classifications under Title VII.
Michael J. DeBoer is an associate attorney practicing in RJ&L's Colorado Springs office. He represents religious institutions, nonprofit, and corporate clients in a variety of legal matters, including policy development, litigation, employment, and First Amendment law.
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