• Supreme Court Rules That A "Constructive Discharge," Standing Alone, Is Not a Tangible Employment Action
  • June 22, 2004 | Author: Adam S. Forman
  • Law Firm: Miller, Canfield, Paddock and Stone, P.L.C. - Detroit Office
  • In the landmark 1998 decisions, Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth, the United States Supreme Court delineated two categories of hostile work environment claims attributable to supervisors under Title VII: (1) sexual harassment culminating in a "tangible employment action" and (2) sexual harassment that takes place in the absence of such an action. Where the former is proved, the employer is strictly liable for the supervisor's conduct. If, however, no tangible employment action occurs, the employer may avoid liability by affirmatively proving that: (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise (the Faragher/Ellerth affirmative defenses).

    Recently, in Pennsylvania State Police v. Suders, the Supreme Court was asked to decide whether an employee claiming that he or she was "constructively discharged" as a result of supervisor harassment ranked as a "tangible employment action" precluding any defense to employer liability. In Suders the plaintiff was not actually terminated, but rather she claimed harassing conduct by her supervisors of such severity that she was forced to quit.

    At the threshold, the Court explained that a "constructive discharge" will be treated as a formal discharge where the employee's working conditions were so objectively intolerable that a reasonable person in the employee's position would have felt compelled to resign. Turning its attention to the issue at hand, the Court reiterated that to maintain a sexually hostile harassment claim, the offending behavior must be sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive working environment. A hostile-environment constructive discharge claim, according to the Court, entails something more: "A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign."

    Whether an employer is strictly liable for constructive discharge supervisory harassment or whether it may use the Faragher/Ellerth affirmative defenses, depends on whether the harassment was a "tangible employment action." A tangible employment action is an "official act," such as a humiliating demotion, extreme cut in pay, or transfer to a position in which the employee would face unbearable working conditions.

    In short, if an employee resigns after repeated sexual comments and unwelcome touching by his or her supervisor, even though the resignation could constitute a "constructive discharge," the employer can avoid liability if it can prove the Faragher/Ellerth affirmative defenses. On the other hand, if an employee resigns after a sexually harassing supervisor demotes or reduces his or her pay, or some other official act, the employer will be strictly liable for the "constructive discharge."

    Unlike Title VII, Michigan's Elliott-Larsen Civil Rights Act does not impose strict liability on employers nor require employers to prove the Faragher/Ellerth affirmative defenses to avoid liability for supervisory harassment. Instead, an employer need only show that it took prompt remedial action after receiving notice of the alleged sexual harassment, regardless of whether the harassment was coworker conduct, unofficial supervisory conduct, or official conduct.