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The 3rd U.S. Circuit Court of Appeals’ recent decision in Suders v. Eastonis an important analysis of post- Faragher/Ellerthsexual harassment law and the law of constructive discharge in discrimination cases. The decision establishes a split among courts of appeals that may ultimately be decided by the U.S. Supreme Court. Nancy Suders began her employment with the Pennsylvania State Police at the McConnellsburg barracks in March 1998. Less than six months later, she resigned her employment following “several instances of name-calling, repeated episodes of explicit sexual gesturing, obscene and offensive sexual conversation and the posting of vulgar images.” The offensive behavior included one officer’s repetition (five to 10 times per day) of an obscene move popularized by televised wrestling. Another officer openly and repeatedly discussed what most observers would classify as deviant sexual behavior. Both of these officers supervised Suders’ employment (an important element under Faragherand Ellerth). Two days before her resignation, Suders contacted the EEO officer of the state police and said that she was being harassed and that she was afraid of her supervisors. Suders claimed that she was advised to file a complaint on a form that she was unable to locate in the employee manual. Nothing more was done. HANDCUFFED AND QUESTIONED The camel’s back was broken when Suders was falsely accused of stealing her own computer test results. The “investigation” into the theft resulted in Suders being handcuffed, photographed and questioned about the incident in a manner usually reserved for criminal suspects. She was released from custody only after she repeated her intent to resign her employment on multiple occasions. Suders brought suit, claiming that she had been discriminated against in violation of the Age Discrimination in Employment Act, Title VII and the Pennsylvania Human Relations Act. The district court granted defendants’ motion for summary judgment in its entirety. The issues brought on appeal involved Suders’ claims under Title VII for hostile work environment and constructive discharge. Notably, the district court found that Suders had been harassed, but that the state police had established the affirmative defense under current Title VII case law. Under the Supreme Court’s decisions of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), the police could escape liability for the alleged sexual harassment only if (a) there was no tangible employment action, and (b) it could establish the affirmative defense that Suders had unreasonably failed to avail herself of the police’s internal procedures for reporting any harassment. The district court assumed, without discussion, that there had been no tangible employment action because Suders had resigned her employment. Had a tangible employment action been found, the affirmative defense would not have been available. While the 3rd Circuit focused principally upon the question of whether a constructive discharge (as Suders alleged) could constitute a “tangible employment action” so as to impose strict liability on the police, without the benefit of an affirmative defense, the court’s discussion of the building blocks to this decision warrants review and analysis as well. REVIEW OF SEX HARASSMENT LAW Initially, the court addressed the question of whether Suders had established a sexually hostile environment under Title VII. In this element of the case, the court reviewed the “five factors” necessary to state a claim of hostile work environment. The court focused its discussion on the subjective (“the discrimination detrimentally affected the employee”) and objective (“the discrimination would detrimentally affect a reasonable person of the same sex in that position”) elements of the test. In this light, it was clear that Suders had been deeply troubled by the atmosphere in the barracks. Looked at objectively, the discussions of deviant sexual behavior, leering and suggestive posturing and the repeated re-enactments of the “sexually charged” wrestling move (which the court referred to as “indicative of an immense immaturity”) established the existence of a sexually hostile environment. At this point, however, the appellate court diverged with the district court’s analysis. While the lower court did not consider the question of whether the constructive discharge was a tangible employment action, the 3rd Circuit found this to be a necessary step that ultimately determined whether the police would be permitted to establish the affirmative defense under Faragherand Ellerth. REVIEW OF CASES The court reviewed the law of constructive discharge in detail, beginning with the seminal decision in Goss v. Exxon Office Systems Co.,747 F.2d 885 (3d Cir. 1984). In Goss,the 3rd Circuit established an objective standard that “the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” In a later decision, Connors v. Chrysler Financial Corp., 160 F.3d 971 (3d Cir. 1998), the court found that “intolerability … is assessed by the objective standard of whether a reasonable person in the employee’s position would have felt compelled to resign, — that is, whether he would have had no choice but to resign.” The court emphasized that there is no all-encompassing list of situations when a constructive discharge will be found. However, the court noted that in most instances, in reviewing the totality of the circumstances, an employee will be expected to attempt to resolve the matter through discussion and complaints, rather than following the “simple expedient of quitting.” Usually, but not always, an employee’s resignation will be reasonable only after such discussions have taken place. As discussed below, this element of constructive discharge analysis may complicate the evidentiary issues at trial on a constructive discharge case involving the Faragher/Ellerthanalysis. The appellate court found that the scenario described by Suders fit easily within the definition of a constructive discharge, particularly the police actions on the final day, which involved the false charges of theft. The court found that “false charges of misconduct are tantamount to threats or suggestions of discharge. Attacking someone with a false charge of theft seems a most effective way of suggesting that an employee will be fired or should leave voluntarily.” After finding that Suders had been sexually harassed and constructively discharged, the court reached what it termed “the critical issue in this case: whether a constructive discharge, when proved, constitutes a tangible employment action.” Again, this issue is case-defining. That is, under Faragherand Ellerth, if the employee proves that she was subject to sexual harassment by her supervisors and the harassment resulted in a tangible employment action, the employer will be strictly liable. Only if there is no tangible employment action can the employer defend itself through establishing the affirmative defense that it had a complaint procedure in place and the employee unreasonably failed to take advantage of such procedure. The court began the final part of its analysis by noting the decisions of the 2nd and 6th Circuits that a constructive discharge does not constitute a “tangible employment action” under Faragherand Ellerth. The Sudersdecision, at this point, amounts to a point-by-point counterargument to the 2nd Circuit decision in Caridad v. Metro-North Commuter R.R.,191 F.3d 283 (2d Cir. 1999). Initially, the 3rd Circuit noted that the Supreme Court’s list of “tangible employment actions” in Ellerth(“hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”) was not exhaustive, as it was preceded by the qualifier “such as.” “By employing the structural technique, the Supreme Court recognized a simple reality of harassment in the modern work place: Tangible employment actions often take the form of subtle discrimination not easily categorized as a formal discharge or demotion.” Secondly, the court rejected Caridad’s argument that constructive discharge was not a tangible employment action because it could be caused by co-workers. The Suderscourt found this to be of “no consequence,” since it was concerned only with the supervisor’s actions, not what could have been caused by co-workers. Finally, the court rejected “any rule requiring a plaintiff-employee alleging a constructive discharge to show an official company act in order to prove a tangible employment action.” The question of whether the company acted to cause the discharge goes to the heart of Faragherand Ellerth,in that the very basis of strict liability is that the supervisor’s harassment is “aided in the agency” by his official status with the company. The Caridadcourt found that, because the company did not need to be involved in a constructive discharge, it should not be held strictly liable for the discharge itself. As noted, the 3rd Circuit rejected this argument. EVIDENCE MAY BE INCONSISTENT Under the Sudersanalysis, where the employee proves that she was constructively discharged as the result of her supervisors’ sexually harassing behavior, the employer cannot defend itself by proving the affirmative defense. There is an inconsistency, however, in the elements necessary to prove a constructive discharge and the prohibition against the affirmative defense. That is, as noted, an employer can defend against a claim of constructive discharge by demonstrating that the employee failed to act reasonably. This may include showing that the employee failed to take advantage of complaint procedures that were available and that a reasonable employee would have done so. This conflicts, of course, with the prohibition against evidence that the employee failed to take advantage of the employer’s complaint procedures. While the Suderscourt recognized this inconsistency, it essentially left the issue to the trial judges and juries to sort out. Suders‘ potential impact is immense. Sexual harassment claims often result in a resignation, followed by a claim of constructive discharge. While employees being subjected to harassment may be thinking at the time more of their well-being than their future legal claims, the Sudersdecision does nothing to encourage the victim to work through his or her problems within the company before resigning. The impact of this decision will bear watching in the months and years ahead. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, ( www.postschell.com ). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected] . If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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