Number: RS21702
Title: Sexual Harassment, Constructive Discharge, and Employers Affirmative Defenses: U.S. Supreme Court Decision in Pennsylvania State Police v. Suders
Authors: Charles V. Dale, American Law Division 
Abstract: 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 employees 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 Courts 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.
Pages: 6
Date: June 18, 2004