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Washington-A workplace sexual harassment ruling last week by the U.S. Supreme Court left both employers and employees claiming victory and both sides predicting more litigation over the “gray areas” surrounding so-called constructive discharges. The justices, ruling 8-1 on June 14, rejected the approach of the 3d U.S. Circuit Court of Appeals, which had held that a constructive discharge was a tangible employment action resulting in strict liability for the employer. A constructive discharge occurs when an employee resigns because working conditions are so intolerable that a reasonable person would have felt compelled to quit. Pennsylvania State Police v. Suders, No. 03-95. Plaintiffs’ lawyers called the decision a victory because the high court ruled for the first time that Title VII of the Civil Rights Act of 1964 applies to constructive-discharge claims, and employees do not have to prove that the employer intended to force them out. Defense lawyers saw a victory in the justices’ rejection of strict liability whenever a constructive discharge occurs. At its most basic level, the decision was a victory for the Pennsylvania State Police, which had challenged the 3d Circuit’s view of liability in constructive discharge cases. The state police, along with officers in its McConnellsburg, Pa., barracks, were accused by Nancy Drew Suders of engaging in a continuous barrage of sexual harassment so severe that it forced her to resign. By ruling that a constructive discharge does not result automatically in strict liability for employers, the high court settled a clear split among the circuits over how to handle this subset of job bias claims involving some of the most pervasive and serious harassment. If there is no tangible job action by the employer-an official act such as a demotion, a cut in pay or a significant change in benefits-employers will be able to raise two affirmative defenses: they had a complaint or grievance policy in effect and the employee unreasonably failed to take advantage of it. But Suders will still have an opportunity to prove her claim. The high court remanded the case, noting that while most of the alleged discriminatory behavior by her supervisors involved unofficial conduct, there was some conduct “less obviously unofficial” that could result in strict liability. And it is that area of “less obviously unofficial conduct” that is likely to trigger “a whole lot of litigation, which isn’t good for anyone,” predicted Michael Foreman, director of the employment discrimination project at the Lawyers’ Committee for Civil Rights Under Law, an amicus party that supported Suders. An employee victory Suders alleged that the harassment began almost immediately after she started working as a state police dispatcher in McConnellsburg in March 1998. Her three supervisors, she charged, daily would discuss having sex with animals, oral sex and make other lewd references in front of her. They also commented on her age and political affiliation. One supervisor allegedly acted out a professional wrestling move five to 10 times per shift. He would cross his hands, grab his private parts and shout, “Suck it,” she charged. In August 1998, she alleged, she contacted the department’s equal employment opportunity officer and said she was being harassed. She was told to fill out a complaint form, but the officer could not tell her where to get one and expressed little sympathy, according to Suders. Two days later, she reached her breaking point, according to her brief. Suders had taken a proficiency test three times and each time the results allegedly were lost. Suspecting foul play, she searched a desk in the office, found and took the test papers. Her supervisors, suspecting she had taken the papers, dusted the desk with fingerprint dust that turned hands blue when touched. When she went to return the papers, Suders’ hands turned blue. Accused of theft, she was handcuffed, photographed and interrogated in the office where she worked. The 50ish mother of three quit the next day and subsequently sued, charging discrimination on the basis of sex, age and political affiliation. The National Labor Relations Board developed the concept of constructive discharge to address situations where employers coerced employees into quitting because of involvement in union activities. The circuit courts have recognized constructive discharge claims in a wide range of cases under Title VII, including discrimination claims based on race, religion, national origin, pregnancy and sexual harassment. The Suders ruling is an important victory for employees because even though the circuits had recognized constructive discharges under Title VII, the Supreme Court had never before addressed the issue, said Susan Grover, an employment law professor and director of the office of equal opportunity at the College of William and Mary Marshall-Wythe School of Law in Virginia. Writing for the majority, Justice Ruth Bader Ginsburg said the high court has recognized constructive discharges in the labor law context. The court also had stated that Title VII is violated by “either explicit or constructive alterations in the terms or conditions of employment,” she noted. “We agree with the lower courts and the [Equal Employment Opportunity Commission] that Title VII encompasses employer liability for a constructive discharge,” Ginsburg said. “The court made a very pro-plaintiff decision in deciding that constructive discharges will constitute formal discharges for purposes of the remedy,” said Grove. “If the employee proves constructive discharge and the employer is found liable, the employee is going to get full damages-compensatory, punitive, back pay and maybe front pay. “The Supreme Court had never held that, under Title VII, constructive discharge is a [formal] discharge. That is big.” The high court also held that the test for a constructive discharge is objective, Foreman said. Ginsburg wrote that a plaintiff must prove that the offending behavior was “sufficiently severe or pervasive” to alter the conditions of employment, and that the working conditions were “so intolerable that a reasonable person would have felt compelled to quit.” “The plaintiff doesn’t need to show the employer was intending to drive her from the workplace,” Foreman said. “A number of lower courts had held that.” In fact, Justice Clarence Thomas, the lone dissenter in Suders, said that where a constructive discharge results from a hostile work environment, an employer should be liable only if negligent. Foreman called the recognition of constructive discharge under Title VII and the lack of an intent requirement “good and progressive wins for plaintiffs.” An employer victory Not so clear a victory for plaintiffs was the high court’s holding on what happens after the employee proves a constructive discharge claim. Ginsburg said the answer comes from two 1998 rulings on when an employer is liable for a supervisor’s sexual harassment of subordinate workers: Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, and Faragher v. City of Boca Raton, 524 U.S. 775. In those decisions, the high court set out two categories of Title VII claims for sexual harassment by supervisors. The first covers severe or pervasive harassment that culminates in a “tangible employment action,” such as a discharge or demotion. For those claims, the employer will be strictly liable. The second category involves harassment “that goes on and on, but has no official marker-no discharge, demotion, severe pay cut or other tangible action,” said Ginsburg. In those cases, the employer may raise an affirmative defense showing the installation of an accessible and effective program for resolving harassment complaints, and the plaintiff failed to use it. The legal analysis, she said, is drawn from agency law. When the supervisor’s harassment culminates in a tangible change in an employee’s work situation or status, the supervisor is aided by the agency relation. When the harassment does not result in any official adverse action, it is less certain that the agency relation is the driving force, she said. That uncertainty justifies giving the employer a chance to show, through the double-headed affirmative defense, that it should not be held vicariously liable. “We see the Supreme Court decision as a victory for employers in that it does require employees to utilize the employer’s in-house complaint or grievance procedure to air charges they’ve been ‘forced out of the company’ before they can race to the courthouse and sue the employer,” said Allan H. Weitzman of Proskauer Rose, who filed an amicus brief supporting the Pennsylvania police on behalf of the Society for Human Resource Management. “Employees can no longer do an end run on the affirmative defense to workplace harassment,” he added. “From our perspective, this decision gives employers a chance to police their own workplaces to prevent discrimination and harassment.” But plaintiff’s counsel Debra Katz of Washington’s Bernabei & Katz countered: “Clearly there is a set of cases where people are stuck in horrible work environments and the supervisor is allowing that to happen. But unless the supervisor does something bad, like demotes you or takes an adverse employment action against you, now you can’t quit. If you do quit and the employer can show you didn’t come forward in an adequate way, you’re out of luck.” But Weitzman said that under the circuit court’s strict liability approach, “The 3d Circuit was telling employees, ‘If it’s bad, don’t complain because if it gets worse, you can quit and go to court without ever complaining,’ and that made no sense whatsoever.” Labor law scholar Charles Craver of George Washington University Law School noted that constructive discharge in itself is a difficult claim to prove. “I do think a lot of people don’t understand the kind of harassment that is so extreme that people can’t sleep at night and fear going to work,” he said. “I think the decision is going to severely limit the use of constructive discharge and will make the affirmative defense available in cases where I did not think the court would make it available.” The high court emphasized that while the employee who alleges no tangible employment action has the duty to mitigate harm under Ellerth and Faragher, the defendant bears the burden to prove that the plaintiff failed in that regard. In the end, the high court is sending another message to employers with the Suders ruling, said Craver. “The court is really saying you should be careful in the way you hire your supervisors and in the way you supervise them. If they were my client, I’d tell them to be very careful in this area.”

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