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If the plaintiff in a sexual harassment suit can prove she was the victim of a “constructive discharge” — meaning that working conditions were so intolerable that she was forced to quit — the defendant is not entitled to invoke the so-called Faragher/Ellerth defense, the 3rd U.S. Circuit Court of Appeals has ruled. The ruling is an important victory for plaintiffs because the federal courts are sharply split over the question of whether a constructive discharge qualifies as a “tangible employment action” for Faragher/Ellerth purposes. With its decision in Suders v. Easton, the 3rd Circuit rejected the views of the 2nd and 6th Circuits — and a handful of district courts that followed them — and opted instead to adopt the reasoning of Chief Judge Mark W. Bennett of the Northern District of Iowa, who held that a constructive discharge, if proved, is equal to a firing or a demotion and, therefore, renders the Faragher/Ellerth defense unavailable. The Faragher/Ellerth defense — outlined by the U.S. Supreme Court in its 1998 decisions in Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton — has two components. To invoke it, a defendant must show that it “exercised reasonable care” to prevent and promptly correct any sexually harassing behavior and that the plaintiff “unreasonably failed to take advantage” of those preventive or corrective opportunities. The decisions were widely hailed as a victory for defendants because they offered a roadmap for summary judgment for companies that establish and enforce effective workplace policies. But the high court also said the defense was not available in cases that resulted in a “tangible employment action,” such as firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Just one year later, the 2nd Circuit held in Caridad v. Metro-North Commuter Railroad that a constructive discharge “does not constitute a ‘tangible employment action,’ as that term is used in Ellerth and Faragher.“ The Caridad court found that “co-workers, as well as supervisors can cause the constructive discharge of an employee” and that “unlike demotion, discharge, or similar economic sanctions, an employee’s constructive discharge is not ratified or approved by the employer.” The 2nd Circuit also suggested that in Ellerth, the Supreme Court had implicitly addressed the issue of constructive discharge and that its holding does not permit the conclusion that such action constitutes a tangible employment action. The 6th Circuit adopted the Caridad court’s reasoning with its 2000 unpublished opinion in Turner v. Dowbrands Inc. But in Cherry v. Menard, Chief Judge Bennett found that “none of the reasons advanced in Caridad stands up to a probing scrutiny.” Now the 3rd Circuit has found that Bennett’s opinion was “well-reasoned” and “presented a compelling counterpoint” to Caridad. Writing for a unanimous three-judge panel, 3rd Circuit Judge Julio M. Fuentes found that “removing constructive discharge from the category of tangible employment actions could have the perverse effect of discouraging an employer from actively pursuing remedial measures and of possibly encouraging intensified harassment.” Fuentes, who was joined by 3rd Circuit Judge Theodore A. McKee and visiting Judge Donald C. Pogue of the U.S. Court of International Trade, found there were no reasons for “treating a constructive discharge differently from an actual termination in the tangible employment action analysis.” Employers confronted with allegations of sexual harassment “have a wide range of options,” Fuentes said, “including terminating the offending supervisor or stepping in and removing the victim from the hostile work environment.” But Fuentes said the court’s “ever expanding Title VII caseload” showed that “there are instances when employers ignore these two alternatives and opt instead to either turn a blind eye or let their internal procedures run their course while the hostile work environment remains unchanged.” With those realities in mind, Fuentes said, “if we were to hold that a constructive discharge does not constitute a tangible employment action, employers would undoubtedly catch on to the availability of the affirmative defense even if the victimized employee resigns from objectively intolerable conditions at work.” Under such a rule, Fuentes said, “the temptation of employers to preserve their affirmative defense would be overwhelming in many situations. Some employers might wish for an employee to quit voluntarily; others might even tacitly approve of increased harassment to achieve that result.” As a result, Fuentes found, the benefits of stepping in to remedy the hostile work environment would be “measurably cloudier.” But by holding that a constructive discharge does constitute a tangible employment action, Fuentes said, “we effectively encourage employers to be watchful of sexual harassment in their workplaces and to remedy complaints at the earliest possible moment; otherwise, they risk losing the benefit of the affirmative defense should victimized employees feel compelled to resign.” The ruling revives a suit brought by Nancy Drew Suders, the former chief deputy sheriff and secretary to the Fulton County sheriff, who claims she was forced to quit her new job with the Pennsylvania State Police after less than five months due to the daily harassment she suffered from her male supervisors. According to court papers, Suders was hired as a police communications operator with the Pennsylvania State Police in March 1998. From the beginning, Suders claims, she suffered mistreatment and sexual harassment so severe that she ultimately felt compelled in August 1998 to resign. According to Suders, the main perpetrators of the sexual harassment were Sgt. Eric D. Easton, the station commander of the McConnellsburg barracks; Patrol Cpl. William D. Baker; and Cpl. Eric B. Prendergast, court papers say. The suit alleged that Easton and Prendergast often had discussions in front of Suders, and on one occasion, Easton stated that “if someone had a daughter, they should teach her how to give a good blow job!” Suders said she was also offended “when defendant Easton, wearing spandex shorts, would sit down in the chair near plaintiff’s work space, put his hands behind his head and spread his legs apart.” The suit says Baker was responsible for the most inflammatory harassment. It alleges that Baker had a habit of making obscene gestures in which he would imitate a move popularized by televised wrestling. The suit says Baker would “cross his hands, grab hold of his private parts and yell, Suck it.” On one occasion, the suit says, Baker announced to Suders, without invitation, that he intended to pierce his genitals and that his wife would pierce her nipple. Suders claims that she complained but that the harassment continued. Within a few months, she claims, the male officers set out to oust her on trumped-up theft charges. Suders claims she was accused of stealing papers in the barracks and was handcuffed, photographed, and questioned. She claims she felt “abused, threatened and held against her will.” After the accusation of theft and the questioning by her supervisors, Suders resigned. In her suit, Suders claimed she was discriminated against on the basis of age, political affiliation, and sex. U.S. District Judge Sylvia Rambo found that Suders had enough evidence to meet the four-part test for showing a hostile work environment in a sexual harassment claim. But Rambo found that the Pennsylvania State Police was nonetheless entitled to summary judgment on its Faragher/Ellerth defense because Suders “unreasonably failed to avail herself of the [State Police's] internal procedures for reporting any harassment.” Now the 3rd Circuit has ruled that Rambo erred because she never addressed Suders’ claim of constructive discharge and whether such a claim would affect the availability of the Faragher/Ellerth defense. Fuentes found that Suders’ case should be allowed to proceed because her constructive discharge, if proved, would render the affirmative defense unavailable. “Holding an employer strictly liable for a constructive discharge resulting from the actionable harassment of its supervisors more faithfully adheres to the policy objectives set forth in Ellerth and Faragher and to our own Title VII jurisprudence,” Fuentes wrote.

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