Vol. 77, No. 10, October
Employer Defenses to Sexual Harassment Claims
A recent U.S. Supreme Court decision considered when an employer may
be held liable to an employee who quits a job due to sexual harassment.
Although the Suders decision involved federal, not state,
antiharassment law, Wisconsin courts and agencies will likely consider
Suders as persuasive authority when interpreting the Wisconsin
Fair Employment Act.
by Jesús J. Villa
Jesús J. Villa, Duke 1998,
practices with Gonzalez, Saggio & Harlan L.L.P., Milwaukee.
When may an employer be held liable to an employee who quits her job
due to sexual harassment? The U.S. Supreme Court recently considered
this question in Pennsylvania State Police v. Suders.1 More specifically, the Court considered whether an
employee who has been "constructively discharged" (that is, effectively
forced to quit her employment) can pursue a harassment claim against the
employer under Title VII of the Civil Rights Act of 1964 even when the
employee had not used the employer's internal complaint procedures
before quitting. The Court held that if the employee's quitting was in
reasonable response to an "official act" of the employer itself (such as
a "humiliating demotion, extreme cut in pay, or transfer to a position
in which she would face unbearable working conditions"), the employer
would be strictly liable for the harassing work environment. Even absent
an official act by the employer, the employer may still defend itself by
proving that it took reasonable steps to prevent and correct the
harassment and that the employee unreasonably failed to avail herself of
the corrective opportunities available. Although Suders
involved federal, not state, antiharassment law, Wisconsin courts and
agencies are likely to consider Suders as persuasive authority
when interpreting similar provisions of the Wisconsin Fair Employment
The Applicable Legal Standards
In two 1998 cases, the Supreme Court considered the circumstances in
which an employer may be liable to a harassed employee. The Court laid
out when an employer would be liable for the sexual harassment engaged
in by a supervisor in Faragher v. Boca Raton2 and Burlington Industries Inc. v.
Ellerth.3 The Court held that liability
depended greatly on whether the harassment involved a "tangible
employment action." The Court described a tangible employment action as
an official act of the employer such as discharge, demotion, or
undesirable reassignment. If the alleged harassment involved such a
tangible employment action, the employer would be strictly
liable. But if no tangible employment action was involved, the
employer could avoid liability by proving:
1) the employer exercised reasonable care to prevent and promptly
correct any sexually harassing behavior; and
2) the employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
otherwise avoid harm.
The intended effect of this affirmative defense was to encourage
employers to implement mechanisms to address harassment in the workplace
- mechanisms such as antiharassment policies, complaint procedures, and
antiharassment training for supervisors. Employees, for their part, were
directed to make use of these preventive mechanisms. Employees who
failed to take advantage of these mechanisms would not be able to
successfully recover in a legal action against the employer.
Since Faragher and Ellerth were decided, there has
been a fair amount of litigation over what constitutes a "tangible
employment action" that would prevent an employer from raising the
two-pronged defense. Clearly, discharging an employee is a tangible
employment action. Less clear is whether a constructive discharge is a
tangible employment action. An employee is considered to have been
constructively discharged when her working conditions become "so
intolerable that a reasonable person in her position would have felt
compelled to resign." A proven constructive discharge is treated the
same as an actual discharge for many purposes, such as for calculating
damages. But the courts have not agreed on whether a constructive
discharge is, like an actual discharge, a tangible employment action
that precludes an employer from raising the Faragher/Ellerth
defense. This is the context in which Suders arose.
The Facts of Suders
Nancy Drew Suders was employed as a communications operator for the
Pennsylvania State Police (PSP). Throughout her employment, Suders was
subjected to a "continuous barrage" of sexual harassment by her three
supervisors. This harassment included offensive comments regarding
bestiality and oral sex and rude and intimidating gestures. A few months
after she began working, Suders contacted the PSP's Equal Employment
Opportunity (EEO) officer and told her she "might need some help." The
EEO officer gave Suders her phone number, but Suders did not follow up
for several months. When Suders finally called and told the EEO officer
she was being harassed, the officer told her to file a complaint. Before
Suders did so, her supervisors arrested her for suspected theft of a
computer skills exam. Although the PSP never formally brought charges
against Suders, she resigned from the force shortly after the
Suders filed a sexual harassment claim against the PSP. The PSP moved
to dismiss the claim on summary judgment. The district court granted the
PSP's motion, finding that Suders "unreasonably failed to avail herself
of the PSP's internal procedures for reporting any harassment." The
court noted that, by resigning just two days after she mentioned
anything to management about harassment, Suders never gave the PSP an
opportunity to respond to her complaints.
The Third Circuit Court of Appeals reversed and remanded the case for
a trial. Among other reasons, the court of appeals reversed because the
district court had failed to recognize Suders' constructive discharge
claim. The Supreme Court granted certiorari to decide whether a
constructive discharge brought about by a supervisor's harassment
constitutes a tangible employment action.
The Supreme Court's Decision
The Court first affirmed that Title VII of the Civil Rights Act of
1964 encompasses employer liability for a constructive discharge. The
Court then considered whether a constructive discharge constitutes a
tangible employment action, and held that it sometimes does and
sometimes does not. The Court recognized that, unlike an actual
discharge, a constructive discharge need not involve an official act of
the employer. A determination of whether a constructive discharge
constitutes a tangible employment action requires examining the conduct
that precipitated the employee's decision to leave. If that conduct
constitutes an official act, it would be considered a tangible
employment action. The Court explained:
"[W]hen an official act does not underlie the constructive discharge,
the Ellerth and Faragher analysis ... calls for
extension of the affirmative defense to the employer. ... [O]fficial
directions and declarations are the acts most likely to be brought home
to the employer, the measures of which the employer can exercise
greatest control. ... Absent 'an official act of the enterprise' ... as
the last straw, the employer ordinarily would have no particular reason
to suspect that a resignation is not the typical kind daily occurring in
the work force. ...[A]n official act reflected in company records - a
demotion or a reduction in compensation, for example - shows 'beyond
question' that the supervisor had used his managerial or controlling
position to the employee's disadvantage. ... Absent such an official
act, the extent to which the supervisor's misconduct has been aided by
the agency relations ... is less certain. That uncertainty ... justifies
affording the employer the chance to establish, through the
Ellerth/Faragher affirmative defense, that it should not be
held vicariously liable."
The Court then used two case law examples to illustrate what would
and would not be considered an official act such as would make a
constructive discharge a tangible employment action. In Robinson v.
Sappington,4 the court noted that the
constructive discharge was a tangible employment action when the
plaintiff, who complained of sexual harassment, was subsequently
transferred to a "hellish" assignment and was told that it was in her
"best interest to resign." The transfer was the type of official act
that transformed the constructive discharge into a tangible employment
action. In contrast, in Reed v. MBNA Marketing Systems
Inc.,5 the constructive discharge was
not a tangible employment action because the harassment experienced by
the plaintiff did not involve any "direct exercise of company
authority." These circumstances involved exactly the kind of wholly
unauthorized conduct for which the affirmative defense was designed.
The Impact on Employers
The Suders decision clarifies but does not significantly
alter the standards for determining employer liability in a case
involving harassment by a supervisor. Since Faragher and
Ellerth, harassment that involves an abuse of supervisor
authority in the form of a tangible employment action results in strict
liability to the employer. Suders has now clarified that when
such a tangible employment action is serious enough so that a reasonable
person would be compelled to resign, the employer will be strictly
liable for the resignation just as if it had directly discharged the
employee. In such circumstances, it would not matter whether the
employer took reasonable steps to prevent and correct the harassment,
nor would it matter if the employee failed to complain of the
harassment. Clearly, wise employers should take precautions to avoid
getting into such a difficult situation.
It is now more important than ever for employers to:
- Maintain antiharassment policies that clearly communicate that the
employer does not tolerate inappropriate conduct.
- Have clear procedures for employees to complain of harassment and
encourage employees to take advantage of those procedures.
- Be proactive in identifying potential harassment liability threats
without waiting for complaints.
- Train supervisors in the do's and don'ts of personal conduct and
make it clear that harassment or other abuses of authority will have
- Conduct exit interviews whenever an employee resigns.
- Consider having upper management or human resources review tangible
employment actions by supervisors to reduce the risk of abuse of
- Take all harassment and discrimination complaints seriously and take
steps to prevent retaliation.
1124 S. Ct. 2342 (2004).
2524 U.W. 775 (1998).
3524 U.S. 742 (1998).
4351 F.3d 317 (7th Cir. 2003).
5333 F.3d 27 (1st Cir. 2003).