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Raising an Affirmative Defense to Constructive-Discharge Claims in Hostile-Work-Environment Cases

The United States Supreme Court has issued a "must read" regarding Title VII of the Civil Rights Act of 1964.1 In Pennsylvania State Police v Suders,2 the Court established under what circumstances an employer may assert an affirmative defense to a claim of a hostile work environment created by a supervisor that culminates in a constructive discharge.

Additionally, the decision establishes the standard for proving constructive discharge and clarifies the parties' respective burdens of proof. The Court held that an employer will be precluded or not from asserting the Ellerth/Faragher affirmative defense3 (see below) depending on whether an "official act" precipitates the constructive discharge.

Understanding this conclusion, however, requires a review of the Suders allegations and analysis. And that, in turn, requires a look at the governing Supreme Court precedent and the split in the circuits that led to Suders.

The Ellerth/Faragher affirmative defense and constructive discharge – a split in the circuits

In 1998, in Faragher v City of Boca Raton4 and Burlington Industries, Inc v Ellerth,5 the Supreme Court established the framework governing employer liability for sexual harassment by supervisors. The decisions categorize supervisor harassment based on whether a "tangible employment action" is alleged. The employer is strictly liable when the harassment "culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment."6

However, when no tangible employment action7 occurs, the employer may raise an affirmative defense to liability. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."8

Immediately after Ellerth and Faragher were issued, employers and employees hotly debated the applicability of the affirmative defense in "constructive discharge" cases, i.e., those in which "an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes."9 While a formal discharge was clearly enumerated by the Court as a tangible employment action in Ellerth, it was debatable whether constructive discharge qualified as well.

Thus, a significant split developed among the circuits regarding whether a constructive discharge caused by supervisor harassment is a tangible employment action and therefore precludes assertion of the Ellerth/Faragher affirmative defense. The second and sixth circuits held that a constructive discharge does not qualify as a tangible employment action, and therefore, the employer can assert the affirmative defense in those cases.10

In contrast, the eighth circuit held that a constructive discharge constitutes a tangible employment action.11 The first and seventh circuits took a third position, i.e., that constructive discharge qualifies as a tangible employment action only when effected through a supervisor's official act.12 The Supreme Court sought to end the debate in Suders.

The Suders allegations

Like most harassment cases, the Suders complaint includes a number of colorful, not to mention disturbing, allegations.

The Pennsylvania State Police ("PSP") hired Nancy Drew Suders in March 1998. Suders alleged that her three male supervisors subjected her to a continuous barrage of sexual harassment, including repeatedly talking about oral sex and people having sex with animals, making obscene gestures while shouting out a vulgar invitation for oral sex five to 10 times per shift, telling her the "village idiot" could do her job, and pounding on furniture to intimidate her.13

In June 1998, Suders' supervisors accused her of taking a missing accident file (or so Suders alleges – this paragraph and the following two contain her allegations, many of which are disputed by PSP). Afterwards, she told the PSP's Equal Employment Opportunity ("EEO") officer that she "might need some help." Although the EEO officer gave Suders her telephone number, neither she nor Suders followed up. Two months later, Suders contacted the EEO officer again, stating that she was harassed and afraid. The officer told her to file a complaint but did not tell her how to obtain the form and appeared insensitive and unhelpful to Suders.14

Two days later, her supervisors arrested her for theft of her own exam papers under suspicious circumstances. Suders was previously told by her supervisors that she had repeatedly failed an exam necessary to fulfill a job requirement. However, Suders found the exams in a drawer in the women's locker room. She removed the papers, concluding that they were never graded and that the supervisors had falsely reported her failures.

Upon learning that the exams were removed, her supervisors dusted the drawer with theft-detection powder. When Suders attempted to return the tests to the drawer, her hands turned blue. Her supervisors then handcuffed and questioned her. Suders had earlier prepared a written resignation, which she tendered during this detention. She was eventually released after being read her Miranda rights and reiterating that she wanted to resign; no theft charges were brought against her.15

Thereafter, Suders sued the PSP for, inter alia, sexual harassment and constructive discharge in violation of Title VII.

The lower court rulings

The district court granted the PSP's motion for summary judgment, finding that although a trier of fact could conclude that Suders was subjected to a hostile work environment, the PSP was not vicariously liable for the misconduct of its supervisors. Relying upon Faragher and Ellerth, the district court found that because Suders unreasonably failed to avail herself of the PSP's internal antiharassment procedures, her sexual harassment claim failed as a matter of law. The court noted that resigning merely two days after she first complained about harassment to the EEO officer denied the PSP the opportunity to respond to her complaints. The court was silent with respect to Suders' constructive-discharge claim.16

The United States Court of Appeals for the Third Circuit reversed the district court for two reasons.17 First, it held that even if the Ellerth/Faragher affirmative defense was available to the PSP, genuine issues of material fact existed about the effectiveness of the PSP's sexual harassment program.18 Second, the appellate court held that Suders stated a viable claim of constructive discharge, and constructive discharge constitutes a tangible employment action.

The court reasoned that Ellerth identified a tangible employment action as one that "constitutes a significant change in employment status."19 Constructive discharge, which ends the employment relationship, meets this criterion. Further, the court noted that a constructive discharge "inflicts the same type of 'direct economic harm'" as the examples of tangible employment actions offered by Ellerth and Faragher.20 Therefore, the court held that the PSP was precluded from asserting the affirmative defense and remanded Suders' claim for trial.21

The Supreme Court's analysis

Although the district court held that the defense was always available in constructive-discharge cases, the third circuit ruled that the defense was never available. In an 8-1 decision (only Thomas, J., dissenting), the Supreme Court took a more moderate position. Although it confirmed that there were genuine issues of material fact concerning both Suders' hostile-work-environment and constructive-discharge claims, the high court ruled that the appellate court erred in declaring that the Ellerth/Faragher affirmative defense is never available in constructive-discharge cases.

Standard of proof for constructive discharge. First, the Supreme Court for the first time expressly recognized the viability of constructive-discharge claims under Title VII. This holding was unsurprising; there was overwhelming prior agreement on this issue among the circuits.

More interesting is the Court's holding regarding the standard for proving a constructive-discharge claim, which arguably relaxes the plaintiff's burden, at least in the seventh circuit. The plaintiff "must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response."22

Prior articulations of the standard by the seventh circuit required the plaintiff to prove that the work environment was so unbearable that quitting was the "only" option or that there was "no choice."23 By requiring only that the resignation qualify as "a fitting response," the Court appears to be more lenient than the seventh circuit. However, the Court reiterated that the "inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?"24

When is the affirmative defense available? Next, the Supreme Court reviewed the Ellerth/Faragher framework. These cases are based on the principle of agency law under which an employer is liable for the acts of its agent when the agent is "aided in accomplishing the tort by the existence of the agency relation."25 When a supervisor takes a tangible employment action against a subordinate (for example, hiring, firing, failing to promote, a decision causing a significant change in benefits, etc.), there is no doubt that the supervisor is "aided" by the agency relation. A tangible employment action is "in essential character" an "official act" of the enterprise.26 Alternatively, when supervisor harassment does not involve a tangible employment action, it is less clear that the agency relation is the "driving force."27

A constructive discharge can be caused by co-worker conduct and unofficial supervisory conduct as well as official company acts. When the act is unofficial, "the extent to which the supervisor's misconduct has been aided by the agency relation…is less certain. That uncertainty…justifies affording the employer the chance to establish" the Ellerth/Faragher affirmative defense.28

Thus, the Court concluded that an employer may assert the Ellerth/Faragher affirmative defense unless 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 conditions."29 Conversely, "an employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor's official act precipitates the constructive discharge.…"30

The Court noted that the third circuit's approach would "anomalously…make the graver claim of hostile-environment constructive discharge easier to prove than its lesser included component, hostile work environment."31 Further, it would make matters complex and confusing for jurors.32 How could a jury be expected to consider the affirmative defense in reaching a decision on the hostile-work-environment claim but disregard that same evidence in deciding an accompanying constructive-discharge claim?

The court gives guidance for applying its decision

What is an "official act"? To give lower courts guidance on how the official act/tangible employment action criterion should play out in a constructive-discharge claim, the Court recounted with approval the handling of the issue by appellate courts in two illustrative cases.

In Reed v MBNA Marketing Systems, Inc,33 the United States Court of Appeals for the First Circuit found that the plaintiff claimed a "constructive discharge based on her supervisor's repeated sexual comments and an incident in which he sexually assaulted her."34 Under those circumstances, the supervisor's behavior involved no official actions and did not preclude the Ellerth/Faragher defense.

Alternatively, in Robinson v Sappington35 the seventh circuit held that the defense was not available where the plaintiff's supervisor transferred her to a supervisor who did not want her, warning her that it would be "hell" and in her "best interest to resign." There, the plaintiff's decision to resign resulted at least in part from the official action of transferring her.36

While these cases offer guidance, there certainly remains room for interpretation and debate among lower courts over what misconduct qualifies as "official action." For example, the Suders court itself noted that the events surrounding the promotional computer-skills exams "were less obviously unofficial" than most of the complained of behavior,37 leaving the issue to be decided upon remand.

Burden of proof. Also, the Court clarified the burden of proof in constructive-discharge hostile-work-environment claims where the Ellerth/Faragher defense is available.

At oral argument, counsel for the PSP noted that while all jurisdictions inquired into whether the employee's resignation was reasonable, courts' specific inquiries varied across circuits. Some focused on whether the employee first tried to resolve the matter internally,38 while others looked only at how bad the conditions were. The third circuit argued that it may be relevant to a claim of constructive discharge whether the employee took advantage of the employer's antiharassment programs, but did not address how to allocate the burdens of what it recognized as overlapping constructive discharge and Ellerth/Faragher considerations.

In Suders, the Supreme Court held that the defense has the burden of proving the plaintiff's failure to mitigate:

[T]he plaintiff who alleges no tangible employment action has the duty to mitigate harm, but the defendant bears the burden to allege and prove that the plaintiff failed in that regard.…The plaintiff might elect to allege facts relevant to mitigation in her pleading or to present those facts in her case in chief, but she would do so in anticipation of the employer's affirmative defense, not as a legal requirement.39

Relying upon this direction, the district court in Baker v Boeing Helicopters40 rejected the employer's summary judgment argument that the employee could not establish a constructive-discharge claim because she made no reasonable efforts to resolve the situation. The court observed that the plaintiff did not bear the burden of alleging factsrelevant to mitigation.41

The significance of Suders

Ultimately, the Court's decision in Suders does not alter the basic Ellerth-Faragher analysis of hostile-work-environment claims. Nonetheless, it is significant because it explains how to apply that analysis with respect to the large subset of constructive discharge claims. Undoubtedly, the decision will become a staple of Title VII analysis, providing not only guidance to courts, but ample material to be relied upon to the benefit of both employees and employers. •

1.   42 USC § 2000e et seq.

2.  124 S Ct 2342 (2004).

3.  A judicially created affirmative defense to liability for supervisory harassment designed to encourage employers to adopt prophylactic and remedial policies and employees to utilize them.

4.   524 US 775.

5.   524 US 742.

6.   Ellerth at 765; accord Faragher at 808.

7.   The seventh circuit has explained that "a tangible employment action is akin to an adverse employment action...." Savino v C.P. Hall Co, 199 F3d 925 (7th Cir 1999) (transfer to another office not a tangible employment action because it did not cause a substantial detriment to the plaintiff's employment relationship). More specifically, "a materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Crady v Liberty Nat Bank & Trust Co of Indiana, 993 F2d 132, 136 (7th Cir1993), relying on Spring v Sheboygan Area School Dist, 865 F2d 883, 886 (7th Cir 1989). See, for example, Molnar v Booth, 229 F3d 593 (7th Cir 2000) (confiscation of art supplies necessary for performance of job and negative evaluation of an intern are tangible employment actions).

8.   Ellerth at 745; accord Faragher at 778.

9.   Suders, 124 S Ct at 2351.

10.   Caridad v Metro-North Commuter RR, 191 F3d 283 (2d Cir 1999); Turner v Dowbrands, Inc, No 99-3984, 2000 WL 924599 (6th Cir 2000) (unpublished decision).

11.   Jaros v LodgeNet Entertainment Corp, 294 F3d 960, 966 (8th Cir 2002).

12.   See Reed v MBNA Marketing Systems, Inc, 333 F3d 27, 33 (1st Cir 2003); Robinson v Sappington, 351 F3d 317, 336 (7th Cir 2003).

13.   Suders, 124 S Ct at 2347-2348.

14.   Id at 2348.

15.   Id.

16.   Suders, 124 S Ct at 2344.

17.   Suders v Easton, 325 F3d 432 (3d Cir 2003).

18.   Id at 443.

19.   Id at 451, quoting Ellerth at 761.

20.   Id at 460, quoting Ellerth at 762.

21.   Id at 461.

22.   Suders, 124 S Ct at 2347.

23.   EEOC v Sears, Roebuck & Co, 233 F3d 432, 441 (7th Cir 2000); Gawley v Indiana University, 276 F3d 301, 315 (7th Cir 2001); Perry v Harris Chernin, Inc, 126 F3d 1010, 1015 (7th Cir 1997).

24.   Suders, 124 S Ct at 2345. Suders implicitly rejects the holding of some circuits that actual intent to compel the employee to resign is required. The seventh circuit never adopted a deliberate intent requirement.

25.   Id at 2353, citing Ellerth at 758, quoting The Restatement (Second) of Agency §219(2)(d)(1957).

26.   Suders, 124 S Ct at 2353 quoting Ellerth at 762.

27.   Id, relying on Ellerth at 763.

28.   Suders, 124 S Ct at 2355.

29.   Id at 2347.

30.   Id at 2351

31.   Id at 2355-56

32.   Id at 2356.

33.   333 F3d 27 (1st Cir 2003).

34.   Suders, 124 S Ct at 2356.

35.   351 F3d 317 (7th Cir 2003).

36.   Id at 337.

37.   Suders, 124 S Ct at FN 11. Additionally, the false arrest and detention might be considered "official action."

38.   See, for example, Gawley at 315.

39.   Suders, 124 S Ct at 2357.

40.   2004 WL 1490358, FN 3 (ED Pa 2004).

41.   The district court dismissed the claim on other grounds.

Athena Papachronis Herman <> is a member of Benassi & Benassi, PC in Peoria, where she concentrates in civil rights and employment law in individual, complex multi-plaintiff, and class-action cases.




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