• Supreme Court Confirms Employer Defense in Constructive Discharge Harassment Cases
  • June 22, 2004
  • Law Firm: Squire, Sanders & Dempsey L.L.P. - Cleveland Office
  • The US Supreme Court has confirmed a significant protection for employers in cases where an employee quits and then later claims supervisor sexual harassment.

    After the Court's decision Monday in Pennsylvania State Police v. Suders, even where employees claim they were forced to quit (or constructively discharged) because of intolerable supervisor sexual harassment, the employer may prevail if it can show the employee unreasonably failed to take advantage of opportunities to end the harassment under the employer's sexual harassment policy.

    Nancy Drew Suders was employed as a police communications officer with the Pennsylvania State Police. Suders claimed she was subjected to a continuous barrage of sexual harassment by her supervisors, so severe that she felt forced to resign. She claimed her supervisors made sexual comments and gestures toward her multiple times during each shift. She alleged that she called her employer's equal employment opportunity (EEO) officer twice, but the officer either did not follow up or was "insensitive and unhelpful" when instructing Suders to file a complaint.

    In 1998, the Supreme Court ruled in Faragher v. Boca Raton, 524 U.S. 775 (1998), that an employer would be strictly liable for supervisor sexual harassment resulting in an adverse employment action, such as a termination or demotion. However, if the supervisor's sexual harassment resulted in a hostile environment without any adverse employment action, the Court provided an affirmative defense under which the employer could defend a harassment claim by showing the employee failed to take advantage of opportunities to end the harassment under the employer's anti-harassment policy.

    In Suders, the Court clarified that a constructive discharge is not an adverse employment action unless it is the result of a change in status such as a humiliating demotion, an extreme cut in pay or a transfer to a position with unbearable working conditions. Without such a status change, an employer is not strictly liable for harassment resulting in an employee's resignation and can avail itself of the Faragher affirmative defense. The Court sent Suders' claim back to the trial court for consideration under this newly announced standard.

    Suders reinforces the critical importance for employers to maintain, disseminate, enforce and regularly review workplace harassment policies so they can take full advantage of all available defenses.