Jottings By An Employer's Lawyer

Monday, June 14, 2004

Constructive Discharge and Ellerth/Faragher - The Supreme Court Decides

One of the post-Ellerth/Faragher questions was whether or not constructive discharge would be a tangible job action. The stakes were potentially significant. If it was, and a supervisor were involved, the employer would arguably be strictly liable with no ability to prove the affirmative defense created by those two decisions. In fact that is what the 3rd Circuit held in the case that was today reversed by the Supreme Court. Pennsylvania State Police v. Suders (S. Ct. 6/14/04). In an 8-1 decision, the Court did not allow itself to be boxed in by its prior language. In effect, the court holds that constructive discharge can be a tangible job action, but the employer is still entitled to establish the affirmative defense unless the plaintiff can show that there was in fact some "official" act which was somehow involved.

Although it is hard to imagine many cases where there would be an "official" action that would not clearly involve a tangible job action as presently defined, the court cites a 7th Circuit case as an example. There a transfer was deemed an "official" action under the circumstances, which made it justifiable to deprive the employer of the right to establish the affirmative defense. The bottom line is that for the most part employers will, to quote Justice Ginsberg, author of the majority opinion "be afforded the ... chance to establish through the Ellerth/Faragher defense that it should not be held vicariously liable," even in cases of constructive discharge.

As a side note, the Court endorses the general principles of constructive discharge:
"Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign" and that "[U]nless conditions are beyond 'ordinary' discrimination, a complaining employee is expected to remain on the job while seeking redress."

All in all a most sensible decision.

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