Bob E. Lype & Associates - Attorneys at Law in Chattanooga, Tennessee
Bob E. Lype - Attorney at Law in Chattnooga, Tennessee
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Supreme Court Clarifies Sexual Harassment "Constructive Discharge" Cases

The Supreme Court rendered its decision today in Pennsylvania State Police v. Suders, clarifying the legal standards and burdens in cases involving claims of sexual harassment resulting in "constructive discharge." This question has remained open since the Court decided Faragher and Ellerth in 1998.

In those 1998 decisions, the Court had stated that when sexual harassment results in a "tangible employment action," such as termination or demotion, taken by the employer against the employee, and when the action is taken by a supervisor, the employer's liability is automatic and is not subject to any affirmative defenses. However, when the employee's claims are that she was in a generally hostile working environment, but there was no claimed "tangible employment action," the employer can rely upon certain affirmative defenses -- that it had in place a policy and procedure for the employee to complain about the situation, and that the employee unreasonably failed to utilize the procedures.

The open question was whether a "constructive discharge" is a "tangible employment action," so as to preclude the employer from relying upon the affirmative defense. For many years the courts have recognized that when an employee is placed in a situation which is so intolerable that the only reasonable recourse is to resign, then that resignation should be treated as the equivalent of a termination or discharge.

In Suders, the Supreme Court first clarified that "constructive discharge" is part of sexual harassment law and discrimination law, generally, under Title VII. The Court explained that whether the situation is so intolerable that resignation is the only option is to be measured by an objective (i.e., "reasonable person") standard.

The Court then explained that if the final, precipitating event which led to the employee's resignation decision was an official, employer-sponsored act, such as a humiliating demotion or cut in pay, then if the resignation is found to meet the criteria for a constructive discharge, the employer's liability is strict and the Faragher and Ellerth affirmative defense is unavailable. However, if the employee resigned for reasons not involving some official, employer-sanctioned action, then the employer may assert and rely upon the affirmative defense, i.e., that it had policies and procedures in place to permit the employee to complain about the actions, but that the employee unreasonably failed to take advantage of those procedures.

The Supreme Court's decision in Suders was authored by Justice Ginsburg, who was joined by seven other Justices. Justice Thomas wrote a brief dissent.

The Suders decision clarifies the law on this subject somewhat. How these standards will be practically applied by the lower courts remains to be seen.

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