The U.S. Supreme Court has ruled that a constructive discharge—in which the work environment becomes so intolerable that an employee is forced to quit—can amount to an adverse employment action in a hostile environment sexual harassment case. And, depending on the circumstances, you could be held automatically liable in this situation if the harasser is a supervisor. We’ll explain the new ruling and why having a strong anti-harassment program is more important than ever.
Harassed Employee Asks for Help, Then Quits
Nancy Drew Suders was a dispatcher for the Pennsylvania State Police (PSP). She claimed her bosses continually subjected her to severe sexual harassment, including sexual comments and obscene gestures. Suders requested help from PSP’s equal employment opportunity officer but didn’t feel she received an adequate response. A few days later, she resigned.
Employee Sues
Suders sued PSP for sexual harassment, claiming PSP should be held automatically liable for the harassment because the perpetrator named in her suit was a supervisor.
PSP said it wasn’t liable and pointed to a defense of supervisor harassment that the U.S. Supreme Court established several years ago. Specifically, employers can escape liability—provided no tangible employment action was taken against the employee if 1) the employer exercised reasonable care to prevent and correct harassing behavior, and 2) the employee didn’t take advantage of the employer’s corrective or preventive opportunities or otherwise failed to avoid harm. (This employer defense does not apply in California, however. See below for more.) PSP argued that Suders didn’t avail herself of PSP’s internal antiharassment procedures.
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Suders responded that the defense didn’t apply because she was constructively discharged or, in other words, was the victim of a tangible employment action.
Employers Automatically Liable for “Official Actions”
The Supreme Court explained in this case that to establish constructive discharge, the employee must demonstrate that the abusive working environment became so intolerable that her resignation was a fitting response.
What’s more, said the court, a constructive discharge can qualify as a tangible employment action, eliminating the employer defense to supervisor harassment. In particular, an employer will be automatically liable if an employee quits in reasonable response to an employer-sanctioned action that “officially” changes the person’s employment status or situation. The court’s examples of such actions include a humiliating demotion, extreme cut in pay, or transfer to a position in which the employee would face unbearable working conditions. If no such official act occurs, the employer defense will be available in a constructive discharge case.
The court was not absolutely clear about what an official action is. Nor did the court reach a conclusion as to whether Suders was subjected to an official action that resulted in her constructive discharge. The high court returned Suders’s case to a lower court for trial, which will determine whether PSP was entitled to use the employer defense.
Protect Yourself
The Supreme Court’s decision is a mixed victory for employers. On the one hand, the ruling establishes that you may be able to avoid automatic liability for supervisor sexual harassment when a constructive discharge is involved. On the other hand, if the employee can tie his or her resignation to an official adverse action by the supervisor, you will be held strictly liable for the harassment.
Smart employment practices include a strong anti-harassment policy, comprehensive complaint and investigation procedures, and a thorough training program for all employees and managers.
California Rules Different
It is important to keep in mind that under California law, the employer defense relied on in the Suders case won’t absolve the employer of liability for supervisor harassment. Rather, the employer remains automatically liable but can limit the victim’s damages by showing that she failed to avail herself of the employer’s antiharassment program to avoid harm.