Eliminating the intent requirement in constructive discharge cases: Pennsylvania State Police v. Suders.

AuthorNorrick, Crystal L.

INTRODUCTION

In Pennsylvania State Police v. Suders, (1) the United States Supreme Court recognized for the first time that employers may be held liable under Title VII of the Civil Rights Act of 1964 (2) for constructive discharge. (3) The Court also held that constructive discharge may be considered a tangible employment action, (4) and, in certain circumstances, an employer may raise an affirmative defense against a claim of constructive discharge. (5) In so doing, the Court resolved a split among circuit courts as to whether constructive discharge constitutes a tangible employment action. (6) Although Suders offered much-needed clarity on the issue of constructive discharge, (7) the Court did not expressly address the issue of whether a former employee alleging constructive discharge must prove that the employer acted intentionally. (8)

Part I of this Note examines the facts behind Suders and outlines the Court's holdings. Part II postulates that, although the Court did not expressly address whether an employee claiming constructive discharge must prove that the employer acted with intent, the Court's ruling in Suders may have implicitly eliminated such a requirement. Part III examines the potential impact of Suders and suggests that, together with the Court's other holdings in the case--in particular its definition of constructive discharge and the damages it made available in constructive discharge cases--eliminating the intent requirement may create an incentive for some employees who are subjected to harassment at work to resign and seek recourse through the courts. Finally, this Note concludes that, to the degree that Suders creates such an incentive for employees to quit without first proceeding through the proper complaint channels, Suders does not advance specific purposes of Title VII.

  1. PENNSYLVANIA STATE POLICE V. SUDERS

    1. Factual Background

      Nancy Drew Suders began working for the Pennsylvania State Police (PSP) in March 1998 as a police communications operator. (9) According to Suders, she was subjected to offensive sexual comments and gestures during most of her tenure at the PSP. (10) Suders claimed that the inappropriate conduct came primarily from three male supervisors. (11) Specifically, Suders claimed that the station commander brought "'up [the subject of] people having sex with animals,"' (12) talked about oral sex with another male supervisor in Suders's presence, and commented to Suders about his wife's breasts. (13) Suders also alleged that another male supervisor made obscene gestures, apparently imitating a television wrestling move, "as many as five to ten times per night throughout her five-month tenure." (14) Suders claimed that on one occasion she told the supervisor that she thought his conduct was inappropriate, and he responded by jumping onto a chair and repeating the move. (15) According to Suders, a third male supervisor "verbally harassed her day after day" (16) by calling her a liar and telling her that "the village idiot could do her job." (17)

      In June 1998, after one of her male supervisors accused her of taking a missing file home with her, Suders contacted the PSP's Equal Employment Opportunity Officer (EEO Officer). (18) Suders told the EEO Officer that "she might need some help" but did not provide further details. (19) The EEO Officer gave her phone number to Suders but never followed up on the conversation. (20)

      According to Suders, the harassment "continued unabated" until it "reached a breaking point" in August 1998. (21) Suders contacted the EEO Officer again and stated that she was being harassed and that she was afraid. (22) Suders claimed that the EEO Officer was "insensitive and unhelpful" and that the EEO Officer told Suders to file a formal complaint, but did not tell her how to obtain a complaint form. (23)

      Two days after her conversation with the EEO Officer, Suders resigned from her position at the PSP. (24) Suders's resignation was prompted by allegations that she stole PSP property. (25) Suders had been required to take a computer skills test several times during her tenure at the PSP. (26) Her supervisors told her that she had failed each time. (27) When Suders discovered her test papers in a set of drawers in the women's locker room, she concluded that her supervisors had lied to her and had never actually forwarded her exams to the appropriate department for grading, so she took the tests. (28) When Suders later attempted to return the tests to the drawers, her supervisors confronted her. (29) Suders was handcuffed and interrogated. (30) Feeling "'abused, threatened and held against her will,'" she tendered her resignation. (31)

    2. The Lower Courts

      Suders filed suit against the PSP in federal district court under Title VII, alleging that she was subjected to a sexually hostile work environment and that she was constructively discharged. (32) The district court found that Suders had presented sufficient evidence to establish an actionable hostile work environment claim; (33) the district court also found, however, that the PSP could not be held vicariously liable under the affirmative defense articulated by the United States Supreme Court in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton. (34) As a result, the district court granted summary judgment in favor of the PSP. (35) The district court did not address Suders's constructive discharge claim. (36)

      On appeal, the Court of Appeals for the Third Circuit reversed and remanded the case. (37) The court's decision was based on its conclusions that constructive discharge constituted a tangible employment action and that the Ellerth/Faragher affirmative defense was unavailable to employers in constructive discharge actions. (38)

    3. The United States Supreme Court

      The Supreme Court granted certiorari (39) "to resolve the disagreement among the Circuits on the question [of] whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and, therefore, precludes assertion of the affirmative defense articulated in Ellerth and Faragher." (40) In an opinion authored by Justice Ginsburg, the Court ruled for the first time that constructive discharge is actionable under Title VII. (41) The Court held that constructive discharge could be, but was not always, a tangible employment action and that the Ellerth/Faragher affirmative defense was available to employers in certain constructive discharge cases. (42) As a result, the Court vacated the Third Circuit's judgment and remanded the case. (43)

      1. Building on Precedent: Ellerth and Faragher

        The Court's opinion in Suders was built on its holdings in Ellerth and Faragher. In both Ellerth and Faragher, (44) the Court "delineate[d] two categories of hostile work environment claims: (1) harassment that 'culminates in a tangible employment action,' for which employers are strictly liable, and (2) harassment that takes place in the absence of a tangible employment action, to which employers may assert an affirmative defense." (45) The Ellerth Court reasoned that, in making tangible employment decisions, a supervisor uses her authority "to make economic decisions affecting other employees under ... her control." (46) In such instances, the supervisor acts as the employer's agent and, therefore, the employer is liable for the supervisor's conduct. (47) On the other hand, in situations in which the hostile work environment does not involve a tangible employment action, it is possible that the supervisor does not use her status to perpetrate the harassing conduct; instead, the supervisor's acts may be similar to those of a coworker. (48) In those situations, the Court reasoned that the supervisor may not always act as the employer's agent and, therefore, the employer should not be held strictly liable for the supervisor's conduct and may raise an affirmative defense to liability. (49) To assert the Ellerth/Faragher affirmative defense, an employer must prove: "(a) that [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." (50)

        In making this distinction in liability, the Court focused on the premise that "Title VII is designed to encourage the creation of antiharrasment policies and effective grievance mechanisms" and that "Congress's intention [was] to promote conciliation rather than litigation in the Title VII context." (51) The Court also considered the EEOC's policy of encouraging employers to develop employee complaint programs. (52) "To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would ... serve Title VII's deterrent purpose." (53)

      2. The Majority Opinion in Suders

        In Suders, the Court held that in order to establish constructive discharge, an employee must show "that the abusive working environment became so intolerable that her resignation qualified as a fitting response." (54) As it did with hostile work environment claims in Ellerth and Faragher, the Court delineated two categories of constructive discharge claims--those that are precipitated by "an official act of the company" (55) and those that are not. (56) In cases in which the constructive discharge claim is based on an official act of the employer, a tangible employment action has occurred and the employer may not assert the Ellerth/Faragher affirmative defense. (57) On the other hand, when an employer's official act does not underlie a claim of constructive discharge, a tangible employment action has not occurred and the defense is available to the employer. (58) The Court reasoned that

        official directions and declarations are the acts most likely to be brought home to the employer, the measures over which the...

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