• Affirmative Defense Available in Constructive Discharge Claims Involving Supervisor Harassment
  • August 10, 2004
  • Law Firm: McNees Wallace & Nurick LLC - Harrisburg Office
  • On June 14, 2004, the United States Supreme Court issued its latest significant decision clarifying the law to be applied in hostile work environment claims under Title VII of the Civil Rights Act of 1964. Suders v. Easton, No. 03-95 (U.S. 2004), was a case against the Pennsylvania State Police that came to the Supreme Court through the United States District Court for the Middle District of Pennsylvania and the United States Court of Appeals for the Third Circuit. The potential significance of this case was discussed at length at our recent McNees Wallace & Nurick Labor and Employment Law Seminar on June 10, 2004. On the very next work day, the United States Supreme Court issued its decision.

    In the 1998 Faragher and Ellerth decisions, the Supreme Court established that, in hostile work environment cases attributable to a supervisor, an employer will be liable for the harassment unless the employer can prove an affirmative defense: that it took reasonable measures to prevent and correct harassment and that the employee unreasonably failed to take advantage of the corrective measures. However, the Supreme Court also made clear in Faragher and Ellerth that an employer will be automatically liable, without the opportunity to prove an affirmative defense, in cases where a supervisor's discrimination culminates in tangible employment action, such as hiring, firing, demotion, etc.

    The issue that originally was left undecided by the Supreme Court in Faragher and Ellerth was whether an employer would be held automatically liable in hostile environment cases attributable to a supervisor which culminate in a constructive discharge (i.e., resignation due to intolerable working conditions). The Supreme Court ultimately resolved this issue by holding that constructive discharge is not necessarily a tangible employment action.

    In Suders, the Supreme Court held that the Faragher/Ellerth affirmative defense will be available in hostile environment cases even if a constructive discharge results, unless an official act taken by the supervisor on behalf of the company -- such as a demotion or significant reduction in compensation -- constitutes the "last straw" resulting in the constructive discharge.

    The Suders decision places renewed emphasis upon the importance of an effective anti-harassment program. The essential elements of such an effective program are:

    (1) an appropriate policy against discriminatory harassment which includes meaningful avenues of complaint;

    (2) effective and documented communication of the policy to all employees;

    (3) periodic training for managers and supervisors concerning their obligation under the company's anti-harassment policy and complaint procedure; and

    (4) taking prompt and effective remedial measures whenever any harassment is reported under the anti-harassment policy.

    Employers are urged to take this opportunity to reexamine their preventative and corrective measures in order to ensure that they will be able to present a strong affirmative defense whenever the need arises.