Sexual Harassment, Constructive Discharge, and Employersâ Affirmative Defenses: The U.S. Supreme Court Decision in Pennsylvania State Police v. Suders (CRS Report for Congress)
| Release Date |
June 18, 2004 |
| Report Number |
RS21702 |
| Report Type |
Report |
| Authors |
Charles V. Dale, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
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 employee's 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 Court's
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.
