In 1998, the U.S. Supreme Court rendered two decisions that defined an employer’s   liability for an employee’s claims of sexual harassment by a supervisor.  These decisions -- the Ellerth and Faragher decisions – hold that employers are strictly liable for supervisor harassment that culminates in tangible employment action, and permit employers to raise an affirmative defense to liability when no tangible employment action is taken.  The defense consists of two elements:  1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and 2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.  In a recent decision, Pennsylvania State Police v. Suders, the U.S. Supreme Court revisited Ellerth and Faragher, and clarified when a hostile-environment constructive discharge claim can involve the type of tangible employment action that renders an employer vicariously liable for the sexual harassment of its supervisors.

Nancy Drew Suders’ suit against the Pennsylvania State Police included allegations that she was subjected to a continuous barrage of sexual harassment by her supervisors in her job as a police communications operator, and that this harassment led to her resignation or constructive discharge.  Both lower courts that reviewed her claims agreed that Suders’ supervisors had engaged in a “pattern of sexual harassment that was pervasive and regular.”  However, they disagreed about whether the Pennsylvania State Police could assert the Ellerth/Faragher affirmative defense in response to her claims. 

The Supreme Court first discussed a plaintiff’s burden of proving a constructive discharge based on hostile environment sexual harassment.  It held that a plaintiff who advances a hostile environment constructive discharge claim must show working conditions so intolerable that a reasonable person would feel compelled to resign, and/or harassing behavior so severe or pervasive that it alters the conditions of employment.  It found that Suders’ claim of sexual harassment presented a “worst case harassment scenario, harassment ratcheted up to the breaking point,” and that the case raised genuine issues of material fact concerning her hostile work environment and constructive discharge claims. 

The Court then addressed the extent to which a constructive discharge can constitute tangible employment action within the meaning of Ellerth and Faragher.  It concluded that if the constructive discharge is precipitated by official action by a supervisor – a demotion or reduction in compensation, or a dangerous job assignment to retaliate for spurned advances – the employer will be strictly liable for those acts.  Absent such “tangible employment action,” however, the employer will have recourse to the Ellerth/Faragher affirmative defense, even when its supervisors are charged with harassment that leads to a constructive discharge.  The Court reasoned that this approach was consistent with the Ellerth/Faragher rationale that vicarious liability be predicated on supervisor misconduct that is aided by the managerial or controlling position. 

Thus, if an employee alleging sexual harassment quits his/her employment in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, the employer will not be able to assert the Ellerth/Faragher affirmative defense in response to that employee’s claims.  If, however, the employee alleging sexual harassment quits but alleges no such tangible action, the employer will be permitted to defend the claim by showing both:  (1) that it had installed an accessible and effective policy for reporting and resolving sexual harassment complaints; and (2) that the plaintiff unreasonably failed to avail himself/herself of those procedures.  This decision reinforces the need to provide appropriate sexual harassment training to supervisors and to implement, enforce and continuously remind employees of sexual harassment policies and complaint procedures.