RS21702 -- Sexual Harassment, Constructive Discharge, and Employers' Affirmative Defenses: The U.S. SupremeCourt Decision in Pennsylvania State Police v.Suders
Updated June 18, 2004

	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. She claimed that she was forced to resign her job in August 1998, becauseof a sexually hostile work environment created by three male supervisors, and harassment due to her age andpolitical affiliation. 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 takenby the courts of appeals. While rejecting the availability of the affirmative defense in any constructive discharge case, the appeals courtsuggested that the existence of an effective anti-harassment policy may nonetheless be relevant to the thresholdquestion of whether the harassment was intolerable and the employee'sdecision to quit a reasonable one. Moreover, even where there has been a tangible employment action,coupled with a constructive discharge or resignation, the employermay have defenses available. Under the decision, if there is any realdispute about whether the employee suffered a tangible employment action, the employer may not rely on theaffirmative defense to obtain summary judgment.
On June 14, 2004 the Supreme Court resolved a conflict among the federal circuitsconcerning the defenses, if any, that may be available toan employer against an employee's claim that she was forced to resign because of "intolerable" sexual harassmentat the hands of a supervisor. An employer may generally assert anaffirmative defense to supervisory harassment under the Court's 1998 rulings in Farager v. City of BocaRaton 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. InPennsylvania State Police v. Suders, the plaintiff claimed the tangible adverseaction 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 JusticeThomas dissenting, accepted the theory of a constructive discharge as a tangible employment action, but it also setconditions under which the employer could assert an affirmativedefense and avoid strict liability. The issue is of key importance for determining the scope of employers' vicariousliability in "supervisory" sexual harassment cases alleging a hostilework environment.