Article from USLAW NETWORK, Inc.

Article from USLAW NETWORK, Inc. ()

July 6, 2004
U.S. Supreme Court Permits Affirmative Defense for Constructive Discharge Cases
by Bob Kilgore and Foy Meyer, Cox & Smith Incorporated, San Antonio, TX

Employees who quit their jobs as a reasonable response to an abusive working environment are entitled to sue their employers for constructive discharge under Title VII of the Civil Rights Act of 1964. In Pennsylvania State Police v. Suders, No. 03-95, 2004 WL 1300153 (June 14, 2004), the Supreme Court clarified under what circumstances employers defending against such claims are strictly liable, and under what circumstances they may rely on the Ellerth/Faragher affirmative defense.

New Framework for Constructive Discharge Cases

To establish a constructive discharge claim under Title VII, the Supreme Court held that a plaintiff must show that he or she was subjected to a working environment so severely hostile and intolerable that resignation was a “fitting response.” In prior decisions (the Ellerth and Faragher cases), the Supreme Court held that employers are strictly liable if the plaintiff suffers from "a tangible employment action." Since Ellerth and Faragher were decided, courts have been split on the issue of whether a constructive discharge is a tangible employment action. The Supreme Court's answer in Suders: it depends.

As a general rule, an employer may assert an affirmative defense against a constructive discharge claim, and thereby avoid all liability to a plaintiff, if it can establish both of the following:

The employer maintained a readily accessible and effective policy for reporting and resolving all complaints of harassment.
The plaintiff unreasonably failed to take advantage of the employer’s preventive or remedial apparatus.

However, this affirmative defense is not available if the plaintiff shows that his or her resignation was a reasonable response to an employer-sanctioned adverse action which officially changed the plaintiff’s status or situation. Specific examples provided by the court include a humiliating demotion, an extreme cut in pay, or a transfer to a position involving unbearable working conditions. If the constructive discharge is linked to an employer-sanctioned adverse action, the employer is subject to strict liability for damages.

The Significance

By permitting employers to use accessible and effective internal procedures as a defense to claims, the Supreme Court has reinforced the need for employers to develop, disseminate, and use anti-harassment training, policies, and procedures. The difference between winning and losing at the courthouse will turn on your attention to these matters now, not after a lawsuit has been filed.

Bob Kilgore is a shareholder in the Labor & Employment Department of Cox & Smith Incorporated in San Antonio, Texas. He is certified by the Texas Board of Legal Specialization in the area of labor and employment law. Foy Meyer is an associate in the Labor and Employment Department of Cox & Smith Incorporated.

Created with eNewsBuilder