• Supreme Court Limits Employer Liability For Certain Constructive Discharge Claims
  • July 12, 2004 | Author: Christopher P. Zubowicz
  • Law Firm: Pepper Hamilton LLP - Philadelphia Office
  • The U.S. Supreme Court recently held 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. __, 72 U.S.L.W. 4493 (2004).

    Impact of Suders for Employers

    • The Court's 8-1 ruling demonstrates strong support for the Faragher-Ellerth affirmative defense.
    • The ruling partially removes the adverse impact of the Third Circuit's decision on an employer's ability to obtain early dismissal of claims.
    • On remand, the issue to watch in Suders will be the extent of Suders' efforts to report the conduct and whether the police department's response was adequate.
    • The ruling reinforces existing incentives for training managers and co-workers, implementing zero-tolerance policies, establishing effective internal complaint procedures, and vigorously investigating complaints of harassment.

    Summary of Suders

    Suders reversed the U.S. Court of Appeals for the Third Circuit, and extended the Supreme Court's analysis in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) about constructive discharge claims arising from alleged sexual harassment.

    The Court distinguished between two categories of constructive discharge claims. In cases where a plaintiff alleges that workplace harassment resulted in her constructive discharge, an employer may raise an affirmative defense if the alleged constructive discharge is not based on an adverse employment action. To prove the affirmative defense, an employer must show that (1) it used reasonable care to prevent and correct harassing conduct and (2) the plaintiff unreasonably failed to rely on the employer's preventive or corrective measures before resigning.

    In contrast, an employer is strictly liable if the harassment resulted in a "company-sponsored" adverse action (such as a "humiliating demotion" or an extreme cut in pay) that was the "final straw" prompting the employee's resignation. Underlying the Court's distinction is the theory that absent an official action by a supervisor, an employer is not likely to know that an employee's resignation is out of the ordinary.

    What Suders does not change is also important. A plaintiff alleging sexual harassment resulting in constructive discharge still bears the burden to prove (1) that she was subjected to a pattern of harassment and (2) that the harassment created a working environment (including the alleged adverse action) that was so intolerable that resignation was a reasonable response. An employer, of course, can dispute that the alleged harassment occurred and proffer legitimate business reasons for any employment decision.

    Expected Areas for Future Litigation

    • Focus on what constitutes a "company-sponsored" adverse employment action.
    • Refinement of when resignation constitutes a "reasonable" response to harassment culminating in an adverse employment action.
    • Treatment of the conduct giving rise to the constructive discharge (i.e. the underlying demotion). For example, if the resignation is not reasonable, is there strict liability for the demotion?
    • Expansion of Suders to other areas of employment discrimination such as disability or race harassment.