Yesterday, the U.S. Supreme Court held in Pennsylvania State Police v. Suders, No. 03-95 (June 14, 2004) that to establish "constructive discharge," a plaintiff alleging sexual harassment must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response.
The Court found the Third Circuit erred in declaring the affirmative defense described in Ellerth and Faragher never available in constructive discharge cases. An employer may assert the Ellerth/Faragher affirmative defense unless the plaintiff quit in reasonable response to an adverse action officially changing her employment status or situation, e.g. a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions.
The case resolved a split among the circuits as to whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes the affirmative defense. The Court concluded that an employer does not have recourse to the affirmative defense when a supervisor's official act precipitates the constructive discharge; absent such a "tangible employment action," however, the defense is available to the employer whose supervisors are charged with harassment.
This is a sound 8-1 decision that brings order and clarity to the constructive discharge claim. Before this case, the Court had never addressed whether constructive discharge was even recognized under Title VII.