Sexual Harassment, Constructive Discharge, and Employers Affirmative Defenses: U.S. Supreme Court Decision in Pennsylvania State Police v. Suders

CRS Report for Congress
Sexual Harassment, Constructive Discharge,
and Employers’ Affirmative Defenses:
The U.S. Supreme Court Decision in
Pennsylvania State Police v. Suders
Charles V. Dale
Legislative Attorney
American Law Division
Summary
On June 14, 2004 the Supreme Court resolved a conflict among the federal circuits
concerning the defenses, if any, that may be available to an employer against an
employee’s claim that she was forced to resign because of “intolerable” sexual
harassment at the hands of a supervisor. An employer may generally assert an
affirmative defense to supervisory harassment under the Court’s 1998 rulings in
Farager v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. The defense
is not available, however, if the harassment includes a “tangible employment action,”
such as discharge or demotion. In Pennsylvania State Police v. Suders, the plaintiff
claimed the tangible adverse action was supervisory harassment so severe that it drove
the employee to quit, a constructive discharge in effect. The Court, in an opinion by
Justice Ginsburg, with only Justice Thomas dissenting, accepted the theory of a
constructive discharge as a tangible employment action, but it also set conditions under
which the employer could assert an affirmative defense and avoid strict liability. The
issue is of key importance for determining the scope of employers’ vicarious liability in
“supervisory” sexual harassment cases alleging a hostile work environment.
On June 14, 2004 the Supreme Court resolved a conflict among the federal circuits
concerning the defenses, if any, that may be available to an employer against an
employee’s claim that she was forced to resign because of “intolerable” sexual harassment
at the hands of a supervisor. An employer may generally assert an affirmative defense to¹
supervisory harassment under the Court’s 1998 rulings in Farager v. City of Boca Raton
and Burlington Industries, Inc. v. Ellerth.² The defense is not available, however, if the
harassment includes a “tangible employment action,” such as discharge or demotion. In

¹ 524 U.S. 775 (1998).
² 524 U.S. 742 (1998).
Congressional Research Service ˜ The Library of Congress

Pennsylvania State Police v. Suders,³ the plaintiff claimed the tangible adverse action was
supervisory harassment so severe that it drove the employee to quit, a constructive
discharge in effect. The Court, in an opinion by Justice Ginsburg, with only Justice
Thomas dissenting, accepted the theory of a constructive discharge as a tangible
employment action, but it also set conditions under which the employer could assert an
affirmative defense and avoid strict liability under Title VII of the 1964 Civil Rights Act.⁴
The issue is of key importance for determining the scope of employers’ vicarious liability
in “supervisory” sexual harassment cases alleging a hostile work environment.
Legal Background – Employer Liability for Sexual Harassment
by Supervisors
Originally, courts drew a distinction for purposes of employer liability between so-
called “quid pro quo” and “hostile environment” claims of sexual harassment. The
former consist of cases where a supervisor threatens to grant or withhold tangible job
benefits – or to inflict detrimental job consequences – based on a subordinate’s response
to unwelcome sexual advances by the supervisor. Employers were uniformly held liable
– whether or not they knew of the harassment or had any policy against it – for any
retaliation suffered by employees who resisted this form of sexual extortion. But the
quid pro quo theory failed to address the plight of employees who refused the supervisor’s
advances, without adverse consequence, or who submitted to save their jobs.
In Meritor Savings Bank v. Vinson,⁵ the Court recognized hostile environment sexual
harassment, which dispensed with the need for any tangible harm – psychological or
economic – to pursue a Title VII claim. In a hostile environment action, the plaintiff
must demonstrate unwelcome sexual conduct – of verbal, physical, or visual nature – that
is so “severe and pervasive” as to alter employment terms and conditions by creating a
subjectively and objectively “hostile, abusive, or offensive working environment.”
Meritor, however, did not define a standard for holding employers liable for harassing
conduct by their supervisors, which led to varying lower court approaches. One
approach held the employer strictly liable for the acts of its supervisors. Other courts
applied a negligence standard, holding employers liable only for harassment of which
they were both aware and failed to prevent. A middle course emphasized as factors
whether the employer had reason to know of the harassment or had a formal anti-
harassment policy in place.
The Supreme Court in Farager and Ellerth sought to allay some of this judicial
confusion as to the nature and scope of an employer’s legal liability for the discriminatory
and harassing conduct of its supervisors in Title VII cases. It held employers strictly
liable for a sexually hostile work environment created by a supervisor, when the
challenged discrimination or harassment results in a “tangible employment action.”⁶ But
in the absence of such a “company act” the employer may raise an affirmative defense
based on its having in place a reasonable remedial process and on the employee’s failure

³ 542 U.S. ____ (2004).
⁴ 42 U.S.C. § 2000e et seq.
⁵ 477 U.S. 57 (1986).
⁶ Ellerth, 524 U.S. at 765; Farager, 524 U.S. at 807.

to take advantage of it. Thus, the Ellerth/Farager defense has two components: “(a) that
the employer exercise reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee unreasonably failed to take
advantage of any preventative or corrective opportunities provided by the employer or to
avoid harm otherwise.”
The Supreme Court defined a “tangible employment action” categorically to mean
any “significant change in employment status,” that may – but not always – result in
economic harm. Specifically, the term includes “hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits”⁷ However, a “constructive discharge,” where the employee
quits, claiming that conditions are so intolerable that he or she was effectively “fired,”
presented an unresolved issue. Could an employer, faced with a claim of constructive
discharge, still assert the Ellerth/Farager defense?
The Suders Case
Nancy Suders was hired by the Pennsylvania State Police as a police
communications officer in March 1998. She claimed that she was forced to resign her job
in August 1998, because of a sexually hostile work environment created by three male
supervisors, and harassment due to her age and political affiliation. The conduct alleged
included repeated episodes of name-calling, explicit sexual gesturing, obscene and
offensive sexual conversation, and the posting of vulgar images in the workplace. Suders
complained to the employer’s equal employment opportunity officer, but received no
assistance in resolving her problem. Near the end of her tenure, Suders was accused of
theft of records from the barracks and, as a result, was handcuffed, photographed, and
held for questioning. Immediately after this incident, she resigned.
Suders filed a federal district court lawsuit, alleging that the State Police and the
individual defendants had subjected her to a hostile work environment based on her sex,
age, and political affiliation and had constructively discharged her, in violation of Title
VII, the Age Discrimination in Employment Act, and the Pennsylvania Human Relations
Act. At the close of discovery, the defendants successfully moved for summary judgment.
Suders’ claims raised genuine hostile environment issues, but the district court found
the State Police were shielded from strict Title VII liability by the Farager/Ellerth
affirmative defense. A three-judge panel of the Third Circuit agreed that Suders’ claim
of a hostile work environment stated a genuine issue for the trier-of-fact. The district
court’s analysis regarding the Farager/Ellerth affirmative defense, however, was flawed
for two reasons. First, whether the state police exercised reasonable care to prevent the
harassment remained in dispute. “[M]ore importantly,” the district court failed to
consider the merits of Suders’ constructive discharge claim and whether a valid claim of
this nature would affect the availability of the affirmative defense.
The constructive discharge doctrine originated in federal labor law and was later
transposed by judicial interpretation to employment discrimination cases. Basically, the
courts have held that an employee alleging a constructive discharge must demonstrate the
concurrence of two factors: 1) (s)he suffered harassment or discrimination so intolerable

⁷ Ellerth, 524 U.S. at 761.

that a reasonable person in the same position would have felt compelled to resign and 2)
the employee’s reaction to the workplace situation was reasonable given the totality of
circumstances. Because of its direct economic harm to employees, the Third Circuit
joined the Eighth Circuit ⁸ in concluding that constructive discharge, if proven, is the
functional equivalent of an actual dismissal and amounts to a tangible employment
action. Taking the opposite position, the Second⁹ and Sixth¹⁰ Circuits had decided that
a voluntary resignation, as opposed to a dismissal, was never the kind of official action
that deprived the employer of its legal defenses. Otherwise, constructive discharge would
have been included in the recital of tangible employment actions listed by the Supreme
Court in the Faragher/Ellerth opinions. Moreover, constructive discharge could result
from actions of co-workers, for which employers have never been held vicariously liable,
as well as supervisory harassment. Finally, the opposing circuits refused to view
constructive discharge as a tangible employment action because it is a “unilateral” act of
the employee that is neither instigated nor ratified by the employer.
Writing for the Third Circuit in Suders, however, Judge Fuentes was convinced that
to permit the affirmative defense in constructive discharge cases would discourage active
intervention by employers to prevent harassment at its earliest stages and could even
promote its continuation.¹¹ Conversely, he did not believe that its decision would
encourage precipitate or irresponsible action by victimized employees. “Because of the
stringent test for proving constructive discharge . . .it is highly unlikely that the employee
will walk off of the job at the first sign of harassment and expect to prevail under Title
VII.”¹² Consequently, whenever an employee shows that working conditions have
become so unendurable as to lead a reasonable employee to resign without formally being
dismissed, the employer would be strictly liable for compensatory and punitive damages
or other Title VII relief. Or, in Suders’ case, “when an employee has raised a genuine
issue of material fact as to a claim of constructive discharge, an employer may not assert,
or otherwise rely on, the affirmative defense in support of its motion for summary
judgment.”

⁸ Jaros v. Lodge Net Enter. Corp., 294 F.3d 960 (8^th Cir. 2002).
⁹ Caridad v. Metro-North Commuter Railroad, 191 F.3d 283 (2d Cir. 1999)(concluding that
constructive discharge does not constitute a tangible employment action), cert. denied, 529 U.S.

1107 (2000).

¹⁰ Turner v. Dowbrands, Inc., 221 F.3d 1336 (6^th Cir. 2000).
¹¹ According to the opinion:
With these realities in mind, if we were to hold that a constructive discharge does not
constitute a tangible employment action, employers would undoubtedly catch on to
the availability of the affirmative defense even if the victimized employee resigns
from objectively intolerable conditions at work. Under such a rule, the temptation of
employers to preserve their affirmative defense would be overwhelming in many
situations. Some employers might wish for an employee to quit voluntarily; others
might even tacitly approve of increased harassment to achieve that result. In any
event, the benefits of stepping in to remedy the hostile work environment are
measurably cloudier. 325 F.3d at 461.
¹² Id.

The Supreme Court Ruling
Justice Ginsburg’s opinion in Suders applied the framework of the Court’s 1998
rulings to stake out a middle ground between the conflicting approaches to constructive
discharge taken by the courts of appeals. The only real difference between the harassment
in Ellerth/Farager and this case was one of degree; that is, Suders presented a “worst
case” scenario, or harassment “racheted up to the breaking point.” But a constructive
discharge claim requires more than a pattern of severe or pervasive workplace abuse as
would satisfy the legal standard for ordinary harassment. Employees advancing
“compound” claims must also prove that the abusive working environment became so
intolerable that a reasonable person would have felt compelled to resign. Such objectively
intolerable conditions could result from co-worker conduct, unofficial supervisory act, or
“official” company acts. The Court’s earlier decisions applied agency principles to define
employer vicarious liability for a supervisor’s harassment of subordinates. Only when
supervisory misconduct is “aided by the agency relation,” as evidenced by a tangible or
“official act of the enterprise,” is the employer’s responsibility so obvious as to warrant
strict liability. When no tangible employment action is taken, the basis for imputing
blame on the employer is less evident, and the focus shifts to the Title VII policy of
prevention. The employer may then defeat vicarious liability by showing that it had
reasonable anti-harassment procedures in place that the employee unreasonably failed to
utilize.
The Supreme Court affirmed that Title VII encompasses employer liability for
constructive discharge claims attributable to a supervisor. It disagreed, however, with
the Third Circuit’s conclusion that the affirmative defense from Ellerth and Faragher was
never available in such cases. The Third Circuit equated constructive discharge with a
tangible employment action, in effect conflating what the Court viewed to be two separate
inquiries. Thus, while actual termination always involves an official company act, Justice
Ginsburg reasoned, a constructive discharge may or may not. Consequently, when an
“official act” (e.g. a demotion, pay-cut, job transfer, or other “official directions or
directions” likely known to the employer) “does not underlie the constructive discharge,”
the role of the agency relationship in the supervisor’s misconduct is uncertain, and the
employer is entitled to the benefit of the affirmative defense. The Third Circuit erred in
drawing the line differently. Justice Ginsburg elaborated:
Under its formulation, the affirmative defense would be eliminated in all hostile-
environment constructive discharge cases, but retained, as Ellerth and Faragher
require, in ‘ordinary’ hostile environment cases, i.e., cases involving no tangible
employment action. That placement of the line, anomalously, would make the graver
claim of hostile-environment constructive discharge easier to prove than its lesser
included component, hostile work environment. Moreover, the Third Circuit’s
formulation, that court itself recognized, would make matters complex, indeed, more
than a little confusing to jurors. Creation of a hostile work environment is a necessary
predication to a hostile environment constructive discharge case. Juries would be so
informed. Under the Third Circuit’s decision, a jury, presumably, would be cautioned
to consider the affirmative-defense evidence only in reaching a decision on the hostile
environment claim, and to ignore or at least downplay the same evidence in deciding
the closely associated constructive discharge claim. It makes scant sense thus to alter

the decisive instructions from one claim to the next when the only variation between¹³
the two claims is the severity of the hostile working conditions.
The Court was critical of one other aspect of the Third Circuit decision. While rejecting
the availability of the affirmative defense in any constructive discharge case, the appeals
court suggested that the existence of an effective anti-harassment policy may nonetheless
be relevant to the threshold question of whether the harassment was intolerable and the
employee’s decision to quit a reasonable one. In response, Justice Ginsburg sought to
clarify that the employer, rather the employee, has the ultimate burden of proving the
unreasonableness of the employee’s actions in this regard. In his dissenting opinion,
Justice Thomas faulted the Court for adopting an overly broad definition of constructive
discharge, which improperly failed to demand proof by the employee that supervisory
harassment was intended to force a resignation.
Conclusion
In recognizing hostile environment constructive discharge claims, Suders enhanced
Title VII protection for employees who quit their jobs over intense sexual harassment by
a supervisor. But the decision also makes it easier for an employer to defend against such
claims by showing that it has reasonable procedures for reporting and correcting
harassment of which the employee failed to avail herself. Only “if the plaintiff quits in
reasonable response to an employer-sanctioned adverse action officially changing her
employment status or situation, for example, a humiliating demotion, extreme cut in pay,
or transfer to a position in which she would face unbearable working condition,” is the
employer made strictly liable for monetary damages or other Title VII relief. Moreover,
even where there has been a tangible employment action, coupled with a constructive
discharge or resignation, the employer may have defenses available. First, the employer
may argue that the harassing conduct did not occur as alleged, or was not sufficiently
severe, pervasive, or unwelcome to meet standards for a Title VII violation. Second, if
the tangible employment action is shown to be unrelated to the alleged harassment, or is
taken for legitimate non-discriminatory reasons – particularly, if by persons other than
the alleged harasser – the employer might escape liability. Finally, the employer might
be able to demonstrate that, whatever form the underlying supervisory harassment may
take, it did not meet the standard for constructive discharge: “so intolerable that a
reasonable person would have felt compelled to resign.” But Suders also makes it more
difficult to obtain summary judgment and avoid jury trials in sexual harassment cases
involving constructive discharge claims. Under the decision, if there is any real dispute
about whether the employee suffered a tangible employment action, the employer may
not rely on the affirmative defense to obtain summary judgment.

¹³ Suders (slip opinion) at p. 18.