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EMPLOYMENT When a sexual harassment plaintiff can prove constructive discharge, an employer cannot rely on the affirmative defense set forth in the U.S. Supreme Court decisions Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton, the 3d U.S. Circuit Court of Appeals ruled on April 16 in a case of first impression. Suders v. Easton, No. 01-3512. Nancy Drew Suders claimed the work environment at Pennsylvania state police was so sexually charged that she felt she had to resign. Because Suders had not complained to a supervisor about the conduct, the department asserted the Ellerth/Faragher affirmative defense to her subsequent lawsuit, meaning, the department would not be vicariously liable for the acts of its employees where the employer took reasonable care to prevent and correct any sexually harassing behavior and the plaintiff-employee unreasonably failed to take advantage of any preventative or corrective opportunities. The district court granted the defendants’ summary judgment motion. The 3d Circuit reversed. An exception to the Ellerth/Faragher affirmative defense is when the employer has taken a “tangible employment action,” such as firing or demoting the plaintiff. Breaking from the approach taken by the 2d and 6th U.S. Circuit Courts of Appeals, the 3d Circuit ruled that constructive discharge is a tangible employment action, so the department should not have been able to claim an affirmative defense.

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