Defense Digest

A Victory For Employers:  The U.S. Supreme Court Decides That Employers Are Entitled To Invoke The Ellerth/Faragher Affirmation Defense In A "Constructive Discharge" Suit
By Stephanie J. Shapson, Esq.*

The United States Supreme Court recently ruled that employers sued for sexual harassment are entitled to assert the Ellerth/Faragher affirmative defense—that the employer had made available policies to prevent and remedy sexually harassing behavior and that the plaintiff unreasonably failed to take advantage of those opportunities—even when a plaintiff can demonstrate that her working environment became so intolerable that she was compelled to resign.  This decision partially reverses a March 2003 decision by the Third Circuit and resolves a split among the circuits.

In Pennsylvania State Police v. Suders, 2004 U.S. LEXIS 4176 (U.S. 2004), Nancy Drew Suders alleged she was forced to quit her new job with the Pennsylvania State Police ("PSP") after less than five months as a result of the continuous harassment she was subjected to from her male supervisors.  Suders became employed with the PSP as a police communications operator in March 1998.  According to Suders, from the commencement of her employment, she was subjected to a continuous barrage of sexual harassment by her male supervisors.  For example, Suders claimed that Sergeant Easton, the station commander of the McConnellsburg barracks, and Patrol Corporal William Baker would often make inappropriate comments in her presence and would make sexually suggestive gestures without invitation.

According to Suders, she reported the harassing conduct to PSP’s Equal Employment Opportunity Officer, but the harassment continued.   Shortly thereafter, Suders claimed that she was accused of stealing her own computer-skills exam papers.  Following the theft accusation, Suders resigned and sued the PSP, alleging she had been subjected to sexual harassment and constructively discharged in violation of Title VII.

At the outset, the District Court recognized that Suders’ testimony would allow a fact finder to conclude that her supervisors had created a hostile work environment.  Nevertheless, the district court granted PSP’s motion for summary judgment on its Ellerth/Faragher defense, finding that Suders unreasonably failed to avail herself of the PSP’s internal procedures for reporting any harassment.  The district court did not address Suders’ constructive discharge claim.

On appeal, the Third Circuit reversed the district court’s findings and remanded the case for trial.  According to the Third Circuit, the district court erred when it failed to address Suders’ claim of constructive discharge and whether the Ellerth/Faragher affirmative defense is available in a constructive discharge claim.  The Third Circuit found that “a constructive discharge, when proved, constitutes a tangible employment action.”  Accordingly, the court held that such an action renders an employer strictly liable and precludes employers from invoking the Ellerth/Faragher affirmative defense.

The U.S. Supreme Court granted certiorari to resolve the disagreement among the circuits on the issue of whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and thus precludes the invocation of the affirmative defense articulated in Ellerth and Faragher.  The Supreme Court concluded that an employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor’s official act precipitates the constructive discharge.  However, absent such a “tangible employment action,” the Court held that the affirmative defense is available to an employer whose supervisors are charged with harassment.

According to the Supreme Court, the Third Circuit erred in equating a constructive discharge with an actual termination for Ellerth/Faragher purposes.  Although both a constructive discharge and an actual termination “end the employer-employee relationship” and “inflict . . . direct economic harm,” a constructive discharge, unlike an actual termination, is not always effected through an official act of the company.  According to the Court, “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.  However, [a]bsent such an official act, the extent to which the supervisor’s misconduct has been aided by the agency relation . . . is less certain.”  According to the Court, it is this uncertainty that justifies giving the employer the opportunity to demonstrate, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable.

This recent decision from the United States Supreme Court can be viewed as a victory for employers.  Employers sued for sexual harassment can now assert the Ellerth/Faragher defense, even where a plaintiff can establish that her working conditions were so intolerable she was forced to quit,  to demonstrate that it should not be held vicariously liable for the conduct of its supervisor(s).  Accordingly, companies that establish and enforce policies designed to prevent and rectify sexually harassing conduct may be entitled to a summary judgment dismissal in a “constructive discharge” suit.

*Stephanie is an associate in the Philadelphia, PA office.  She can be reached directly at sshapson@mdwcg.com or (215) 575-2583.