Be proactive


On June 14, in Pennsylvania State Police v. Suders, No. 03-95, the U.S. Supreme Court considered when an employer may be held liable to an employee who quits her job due to sexual harassment.

More specifically, the court considered whether an employee who has been "constructively discharged" (i.e., effectively forced to quit her employment) can pursue a harassment claim against the employer, even when she had not taken advantage of internal complaint procedures prior to quitting.

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The court held that if the employee’s quitting was in reasonable response to an "official act" of the employer itself (such as a "humiliating demotion, extreme cut in pay or transfer to a position in which she would face unbearable working conditions"), the employer would be strictly liable for the harassing work environment.

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However, absent such an official act by the employer, the employer may still defend itself by proving that it took reasonable steps to prevent and correct the harassment and that the employee unreasonably failed to avail herself of the corrective opportunities available.

In 1998, the Supreme Court laid out when an employer would be liable for the sexual harassment of a supervisor in Faragher v. Boca Raton, 524 U.S. 775, and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742. The Court held that liability depended greatly on whether the harassment involved a "tangible employment action."

A tangible employment action was described as an official act of the employer such as discharge, demotion or undesirable reassignment. If the alleged harassment involved such a tangible employment action, the employer would be strictly liable. But if no tangible employment action was involved, the employer could avoid liability by proving:

1. The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and

2. The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Since Faragher and Ellerth were decided, there has been a fair amount of litigation over what does and does not constitute a "tangible employment action" that would prevent an employer from raising the two-pronged defense.

Clearly, discharging an employee was a tangible employment action. Less clear was whether a constructive discharge was a tangible employment action.

An employee is considered to have been constructively discharged when her working conditions become "so intolerable that a reasonable person in her position would have felt compelled to resign."

A proven constructive discharge is treated the same as an actual discharge for many purposes, such as calculating damages. But the courts have not agreed on whether a constructive discharge was, like an actual discharge, a tangible employment action that precluded an employer from raising the Faragher/Ellerth defense.

Nancy Drew Suders was employed as a communications operator for the Pennsylvania State Police ("PSP"). Throughout her employment, Suders was subjected to a "continuous barrage" of sexual harassment by her three supervisors. This harassment included offensive comments regarding bestiality and oral sex and making rude and intimidating gestures.

A few months after she began working, Suders contacted the PSP’s EEO officer and told her she "might need some help." The EEO officer gave Suders her phone number, but Suders did not follow up for several months.

When Suders finally called and told the EEO officer she was being harassed, the officer told her to file a complaint. Before Suders did so, her supervisors arrested her for suspected theft of a computer skills exam.

Although the PSP never formally brought charges against Suders, she resigned from the force shortly after the arrest.

Suders filed a sexual harassment claim against the PSP. PSP moved to dismiss the claim on summary judgment. The district court granted PSP’s motion, finding that Suders "unreasonably failed to avail herself of the PSP’s internal procedures for reporting any harassment."

The court noted that, by resigning just two days after she mentioned anything to management about harassment, Suders never gave the PSP an opportunity to respond to her complaints.

The Court of Appeals for the Third Circuit reversed and remanded the case to trial. Among other reasons, the Court of Appeals reversed because the district court had failed to recognize Suders’ constructive discharge claim. The Supreme Court granted certiorari to decide whether a constructive discharge brought about by a supervisor’s harassment constitutes a tangible employment action.

The Court first affirmed that Title VII of the Civil Rights Act of 1964 encompasses employer liability for a constructive discharge. The Court then went on to consider whether a constructive discharge constitutes a tangible employment action, and held … well … sometimes yes, sometimes no.

The Court recognized that, unlike an actual discharge, a constructive discharge need not involve an official act of the employer. Determining whether a constructive discharge constitutes a tangible employment action means examining the conduct that precipitated the employee’s decision to leave to determine whether that conduct constitutes an official act such as would be considered a tangible employment action.

The Suders decision clarifies but does not significantly alter the standards for determining employer liability in a case involving harassment by a supervisor. Since Faragher and Ellerth, harassment that involves an abuse of supervisor authority in the form of a tangible employment action results in strict liability to the employer.

Suders has now clarified then when such a tangible employment action is serious enough so that a reasonable person would be compelled to resign, the employer will be strictly liable for the resignation as if it had directly discharged the employee.

In such circumstances, it would not matter whether the employer took reasonable steps to prevent and correct the harassment, and it would not matter if the employee failed to complain of the harassment.

It is now more important than ever for employers to:

Â¥ Maintain anti-harassment policies that clearly communicate that inappropriate conduct is not tolerated by the employer.

Â¥ Have clear procedures for employees to complain of harassment and encourage employees to take advantage of those procedures.

Â¥ Be proactive in identifying potential harassment liability threats without waiting for complaints.

Â¥ Train your supervisors in the do’s and don’t’s of personal conduct and make it clear that harassment or other abuses of authority will have serious consequences.

Â¥ Conduct exit interviews whenever an employee resigns.

Â¥ Consider having upper management or human resources review tangible employment actions by supervisors to reduce the risk of abuse of supervisory authority.

Â¥ Take all harassment and discrimination complaints seriously and take steps to prevent retaliation.

JesŔs Jose Villa is an attorney and an associate at Gonzalez, Saggio & Harlan LLP, a Milwaukee-based law firm with offices in Chicago, Indianapolis, Merrillvile, West Des Moines and Cincinnati. For more information on this topic, contact him at

July 9, 2004, Small Business Times, Milwaukee, WI

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