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When she could no longer take the daily bombardment of lewd comments and the ritual performances of an obscene gesture, she says, Nancy Drew Suders quit her job. Now she argues that the Pennsylvania State Police should be strictly liable for the harassment from which she fled. At the end of this month, the U.S. Supreme Court will use Suders’ lawsuit to answer a question that has split the federal appellate courts: Is a constructive discharge — an employee’s resignation because of a work environment so intolerable that there was no choice but to quit — the kind of “tangible” action by an employer that imposes strict liability for its supervisors’ actions? Pennsylvania State Police v. Suders, No. 03-95. “This is a very, very important case,” said Debra Katz of Washington’s Bernabei & Katz, who represent employees in discrimination cases. “There are a lot of constructive discharge cases litigated. If an employer creates a work environment so intolerable that an employee is forced to leave, it should be treated no differently than an out-and-out discharge.” But quitting and being fired are different, said Pennsylvania Chief Deputy Attorney General John G. Knorr III. Allowing strict liability in constructive discharge situations “will increase the scope of an employer’s liability in an area where supervisors may be misbehaving in a way that employers have no real control over,” Knorr said. The 3rd U.S. Circuit Court of Appeals agreed with the plaintiff’s side and with the 8th Circuit’s view that a constructive discharge constitutes a tangible employment action, such as a firing, demotion or cut in pay. The 2nd and 6th circuits have disagreed. A wide array of business groups are supporting the Pennsylvania State Police. Business groups argue that imposing strict liability would be unfair, would subject employers to significantly more discrimination claims and would undermine the defenses now available to them in discrimination cases. The Bush administration has weighed in on the side of the state. As Suders heads into Supreme Court arguments on March 31, she is backed by 10 civil rights, labor and other advocacy organizations. The harassment began almost immediately after Suders started working as a police dispatcher in McConnellsburg, Pa., in March 1998, she alleged. Her three supervisors daily would discuss having sex with animals and oral sex and make other lewd remarks, she said. One supervisor acted out a move five to 10 times per shift, she said. 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, her brief says. THE CRISIS A crisis came two days later. Suders had taken a computer-skills test three times. Each time, her supervisors told her she had failed. She searched a desk in the locker room, found and took the test papers. Supervisors dusted the desk with a powder that turned hands blue. After she went to return the papers, Suders was caught. Accused of theft, she was handcuffed, photographed and interrogated. The 50-ish mother of three quit the next day and subsequently sued, charging discrimination based on sex, age and political affiliation. A district court granted summary judgment in favor of the state police, holding that the police had established an affirmative defense to vicarious, not strict liability. The 3rd Circuit reversed, holding that Suders had raised genuine issues of material fact on whether she had been constructively discharged. It said a trial should decide that, and, if she had been, there would be no affirmative defenses for the police. At the heart of the Supreme Court appeal are two sexual harassment rulings by the justices in 1998: Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, and Faragher v. City of Boca Raton, 524 U.S. 775. In a sexual harassment suit under Title VII of the Civil Rights Act of 1964, the court held, an employer will be vicariously liable for a hostile work environment created by a supervisor with immediate or higher authority over a worker. If the harassment results in a tangible employment action, such as firing, failure to promote, reassignment or a decision causing a significant change in benefits, the employer is strictly liable for its supervisors’ actions. If the harassment did not result in a tangible employment action, the employer may raise an affirmative defense to avoid liability or damages. The defense is that the employer “exercised reasonable care to prevent and correct promptly” the harassing behavior, and that the employee “unreasonably failed” to take advantage of opportunities provided by the employer to correct or prevent the harm. With those decisions, scholars say, the high court sought to make employers and employees share the burden of responding to workplace harassment. The state and its supporters argue that a constructive discharge lacks the signs of official action that typically mark tangible employment actions. The latter, they say, involves “an official act of the enterprise,” which generally causes direct economic harm. The Equal Employment Advisory Council, a business group, argues in support of the state that the affirmative defenses crafted by the court in Ellerth and Faragher were designed to encourage employers to address workplace discrimination. And, it adds, they have done so. A 2001 survey of more than 200 human resource executives found that 82% provided sexual harassment prevention training for their supervisors, up from 34% in 1995. And 60% reported handling a sexual harassment complaint in 2000, down from 92% in 1995, the group said. Allowing strict liability for harassment resulting in constructive discharges would make having a complaint procedure and a remedial policy pointless, wrote Ann Elizabeth Reesman of Washington’s McGuiness Williams & Norris, counsel to the business organization. The Bush administration argues that a constructive discharge standing alone should not produce a categorical rule of strict liability. The Faragher/Ellerth affirmative defenses should be available, the government says, “unless the constructive discharge was triggered in significant part by an ‘official act’ of the employer. “An employer has far less ability to control a supervisor’s workplace harassment when it is unaccompanied by an official act, and agency principles therefore do not support a rule of strict liability in such cases,” the U.S. solicitor general and Equal Employment Opportunity Commission (EEOC) argue. But Suders’ supporters and counsel, Donald Bailey of Bailey, Stretton & Ostrowski in Harrisburg, Pa., contend that their opponents ignore a history of court treatment of constructive discharges. Courts for decades have recognized that a constructive discharge, when proven, “is the legal equivalent of an actual discharge,” Susan Grover of the College of William & Mary School of Law wrote in an amicus brief for the Lawyers Committee for Civil Rights Under Law, the National Employment Lawyers Association and other civil rights groups. Because Faragher/Ellerth defined “tangible employment actions” to include discharges, Grover said, constructive discharges constitute tangible employment actions. Grover also noted that, despite its current position, the EEOC, which is charged with enforcing Title VII, has taken the position in recent litigation that a constructive discharge is a tangible employment action. It has called arguments to the contrary “obtuse.” Charles Craver of George Washington University Law School, a labor and employment law scholar, said it would be “shocking” if the court ruled against Suders. CONSTRUCTIVE DISCHARGE “Historically, the courts have treated a constructive discharge as a discharge in cases under the National Labor Relations Act and the civil rights laws,” Craver said. “It most often comes up in a backpay question. Someone claims he did not quit voluntarily. If he proves the circumstances were so extreme that a reasonable person in his position would have quit, he’s entitled to backpay.” Katz said, and Craver agreed, that there is a high standard of proof for employees claiming constructive discharge. “In our practice, people will come to us with really horrible scenarios and we will counsel them that it doesn’t rise to the level of constructive discharge,” said Katz. “The workplace really has to be intolerable.” Without strict liability, Craver warned, “Supervisors who engage in offensive behavior would be encouraged to engage in even more offensive behavior in hopes the employee would quit.” The state’s Knorr countered by saying that the standard “varies quite a lot from court to court.” Coyle’s e-mail address is [email protected].

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