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Employers sued for sexual harassment are entitled to invoke the Faragher/Ellerth defense — that the employer had made available corrective remedies that the plaintiff failed to pursue — even if the plaintiff can prove that her working conditions were so intolerable that she was forced to quit, the U.S. Supreme Court ruled Monday. The 8-1 decision in Pennsylvania State Police v. Suders partially reverses a March 2003 decision by the 3rd U.S. Circuit Court of Appeals and resolves a split in the circuits. Although the justices upheld the 3rd Circuit’s decision to revive Nancy Drew Suders’ lawsuit, they said the appeals panel went too far when it held that employers are not entitled to invoke the Faragher/Ellerth defense where the plaintiff can prove she was the victim of a “constructive discharge.” “We agree with the 3rd Circuit that the case, in its current posture, presents genuine issues of material fact concerning Suders’ hostile work environment and constructive discharge claims. We hold, however, that the court of appeals erred in declaring the affirmative defense described in Ellerth and Faragher never available in constructive discharge cases,” Justice Ruth Bader Ginsburg wrote. In a lone dissent, Justice Clarence Thomas said he would have upheld the trial judge’s original decision to dismiss Suders’ case because she had no evidence that top brass at the state police “knew or should have known of the alleged harassment.” The Faragher/Ellerth defense — outlined by the 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” by establishing policies designed 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 employers because they offered a road map to a summary judgment dismissal for companies that establish and enforce effective workplace policies. But the high court also said the newly articulated 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. The federal appellate courts later split over the question of whether a constructive discharge qualifies as a “tangible employment action” for Faragher/Ellerth purposes. The split occurred when the 3rd Circuit, in Suders’ case, 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. Now the Supreme Court has held that the 3rd Circuit erred in equating a constructive discharge with a firing or demotion for Faragher/Ellerth purposes. “To be sure, a constructive discharge is functionally the same as an actual termination in damages-enhancing respects,” Ginsburg wrote. But “unlike an actual termination,” Ginsburg said, a constructive discharge is not always effected through an official act of the company. “A constructive discharge involves both an employee’s decision to leave and precipitating conduct,” Ginsburg wrote. “The former involves no official action; the latter, like a harassment claim without any constructive discharge assertion, may or may not involve official action.” As a result, Ginsburg concluded that “when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold, calls for extension of the affirmative defense to the employer.” According to court papers, Suders was the former chief deputy sheriff and secretary to the Fulton County sheriff. In her suit, she 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. The suit said 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 to resign in August 1998. 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. 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 the first round of litigation, U.S. District Judge Sylvia Rambo of the Middle District of Pennsylvania 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.” But 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. Litigation before the U.S. Supreme Court focused on whether the 3rd Circuit was correct in holding that a constructive discharge, if proved, would render the Faragher/Ellerth affirmative defense unavailable. Although the justices reversed the 3rd Circuit on that central question, they upheld the appellate court’s decision to revive Suders’ case to allow her to pursue her claim that the harassment was so severe that she was forced to quit.

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