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This year, the U.S. Supreme Court will weigh in on an issue of sexual harassment jurisprudence that has divided the lower courts. In its review of the decision by the 3d U.S. Circuit Court of Appeals in Pennsylvania State Police v. Suders, 325 F.3d 432 (3d Cir. 2003), cert. granted, 124 S. Ct. 803 (Dec. 1, 2003), the court will consider whether “constructive discharge” of an employee�that is, when an employee is subjected to workplace harassment so intolerable that she feels forced to quit�constitutes a “tangible employment action” that precludes an employer from raising the affirmative defense that it took reasonable steps to prevent and correct the harassment. While the Suders decision will give the high court a chance to provide guidance on its definition of a “tangible employment action,” the more important question here may be: What is “constructive discharge” anyway? Establishing an employer’s affirmative defense In its decisions in Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court set the standard for employer liability for actionable sexual harassment when committed by a supervisor. The court distinguished between those types of workplace harassment that involve a tangible employment action against the employee and those that do not. It reasoned that a tangible employment action “constitutes a significant change in employment status . . . such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761. The court ruled in Ellerth and Faragher that employers are strictly liable for this kind of harassment. In contrast, when the supervisor does not take any tangible employment action causing economic harm to the employee, an employer may raise an affirmative defense to liability that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. This is not the first time that the issue of tangible employment actions has arisen in the context of workplace harassment. Before 1991, Title VII of the Civil Rights Act of 1964 allowed only for the recovery of equitable remedies, such as back pay, reinstatement and injunctive relief. An employee who was not fired or demoted as a consequence of sexual harassment-that is, who experienced no “tangible” impact on her job-did not have any economic redress, and it was unclear whether actionable harassment had even occurred. This meant that women so victimized by harassment that they quit had to show “constructive discharge” to have any real remedy at all. Avoiding this consequence was part of the impetus for enacting those portions of the Civil Rights Act of 1991 that made punitive and compensatory damages available to employees subjected to a harassing work environment, even when an employee did not experience any tangible economic consequences. As a result, after 1991, the question of whether an employee had been subjected to a tangible job action became less and less significant. With the Ellerth/Faragher framework, sexual harassment law came full circle. Courts are again struggling with the issue of how to define “tangible employment action” because much of legal significance now turns on whether there has been one. In Suders, the plaintiff, who was a communications operator at a Pennsylvania police station, claimed that she had been subjected to a sexually hostile work environment created by her supervisors. She alleged that, ultimately, her supervisors falsely accused her of theft, handcuffed and interrogated her, and released her from the station only after she resigned. The district court held that while genuine issues of material fact about the severity of the harassment remained, the state police was nonetheless entitled to summary judgment under the Ellerth/Faragher defense since Nancy Suders had not availed herself of her employer’s preventive and corrective measures before she quit. In reversing, the 3d Circuit concluded that a constructive discharge, when proved, “operates as the functional equivalent of an actual termination,” 325 F.3d at 458, and therefore precluded the Ellerth/Faragher defense. More specifically, the court held that when an employee successfully demonstrates that the work environment created by an employer was so intolerable that she had no choice but to resign, there is a constructive discharge that is, in effect, “the act of the employer.” Id. Other courts have reached a similar result. See Jaros v. LodgeNet Entertainment Corp., 294 F.3d 960 (8th Cir. 2002). The 2d and 6th circuits have arrived at the opposite conclusion. In Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), the 2d Circuit held that constructive discharge should not be considered a tangible employment action. The court based its decision on several grounds, including that both co-workers and supervisors can cause the constructive discharge of an employee and that an employee’s constructive discharge (unlike demotion, discharge or similar economic sanctions) is not ratified or approved by the employer. In reaching their conflicting conclusions, the 2d and 3d circuits have decided that constructive discharge is, or is not, a tangible employment action without focusing on exactly what is meant by “constructive discharge,” as if it means only one thing. It does not. Common law definitions of “constructive discharge” often differ on one essential point: the element of intent. Whether a supervisor employer intended to create an environment for an employee so that she has no option but to quit her job is critical to answering the question of whether “constructive discharge” is or is not a tangible employment action. In Suders, the 3d Circuit explicitly excluded intent from constructive discharge, saying, “The court need merely find the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” 325 F.3d at 444, citing Goss v. Exxon Office Systems Co., 747 F.2d 885, 887 (3d Cir. 1984). Thus, an employee may prevail on this view of constructive discharge by establishing that the offending conduct would have the “foreseeable result that working conditions would be so unpleasant or difficult that a reasonable person in the employee’s shoes would resign.” Goss, 747 F.2d at 887-88. In Suders itself, there was fairly strong evidence of intent-handcuffing the plaintiff to a desk and refusing to release her until she quits is, one might say, reasonably probative of intent-but that was not the basis of that court’s decision. Two circuits differ over issue of intent One could argue that the 3d Circuit’s exclusion of intent from the definition of constructive discharge muddles its reasoning for treating constructive discharge as a tangible employment action and undermines the presumption that constructive discharge should always be considered “the act of the employer.” Moreover, treating constructive discharge, without intent, as a tangible employment action makes it nearly impossible to draw clear lines between the hypersensitive employee whose first response to harassment is to quit and harassment so objectively severe as to compel a reasonable employee to resign. Without that clear demarcation, it is almost impossible to decide in cases of alleged harassment-induced resignations whether the Ellerth/Faragher affirmative defense even applies, and that ambiguity will make it very hard for employers to avoid full trials in such cases. In contrast, the 2d Circuit has defined constructive discharge to include the element of intent: An employee must show that “the employer . . . intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily.” Whidbee v. Garzarelli Food Specialties Inc., 223 F.3d 62 (2d Cir. 2000). Stated otherwise, there is no “constructive” discharge merely because the employee had good reason to quit; rather, he must, literally and deliberately, have been forced into it. See Petrosino v. Bell Atlantic, 2003 WL 1622885 (E.D.N.Y. 2003). Under the 2d Circuit’s standard, constructive discharge looks much more like a tangible employment action. If an employee is required to show not only that she was subjected to harassment so severe that a reasonable person would have quit, but also that her supervisor intended for that to occur, then it is more plausible to say that constructive discharge-so understood-is a “tangible employment action” and the functional equivalent of a discharge, since both require that the supervisor use his delegated economic power intentionally to cause the removal from the workplace of the disfavored employee. Yet there is still the difference that, unlike an actual discharge, a constructive one (even with intent) does not require employer ratification or approval of the supervisor’s act. From the recent oral arguments before the Supreme Court, it appears that the court may well rule on whether constructive discharge is a tangible employment action without actually making clear what it takes “constructive discharge” to mean. That would leave lower courts to apply a legal rule whose essential term was not sufficiently defined. Michael Starr is a partner in the labor and employment group in the New York office of Washington’s Hogan & Hartson. He can be reached at [email protected]. Amy L. Strauss is an associate in that group. She can be reached at [email protected].

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