The U.S. Supreme Court Clarifies Constructive Discharge under Title VII

• Date: 01 March 2007
• DOI: 10.1177/009102600703600101
• Published date: 01 March 2007
• Subject Matter: Article

The U.S. Supreme Court

Clarifies Constructive

Discharge Under Title VII

Responsibilities &

Opportunities for Human

Resources Practitioners

By Martha Crumpacker, D.B.A. and Jill M. Crumpacker, Esq., SPHR

Authors’ note: The views and opinions expressed in this article are solely those of the authors

alone and in no way purport to represent an opinion, policy or position of the Washburn

University School of Business, U.S. government, or the Federal Labor Relations Authority.

Nothing in this article should be considered legal advice.

In 1998, the U.S. Supreme Court established a defense for employers to minimize

liability against a Title VII claim of hostile work environment due to a supervisor’s

harassment unless the employee suffered a tangible employment action, such as

termination, demotion, or an undesirable reassignment. At that time, the Supreme

Court did not address whether a tangible employment action includes constructive

discharge. Since then, circuit courts of appeals have reached conflicting

conclusions, resulting in possible inconsistencies in human resources advice and

guidance. On June 14, 2004, the Supreme Court resolved the split among the

circuits in Pennsylvania State Police v. Suders. This article revisits the current

employer liability defense, the effect of the Suders decision on that defense and

the responsibilities and opportunities that Suders imputes to human resources

practitioners to minimize employer liability in constructive discharge cases.

Keywords: Constructive discharge, employer liability, sexual harassment, sexual dis-

crimination, tangible employment action, Title VII

Introduction

According to a recent poll, more than one in five Americans claims to have experi-

enced employment discrimination.1Whether in the private or public sector, work-

place harassment and discrimination based on sex are frequent complaints of

employees, male and female.2In addressing such complaints, the human resources

department (HR) occupies a unique position within an organization because of its

dual role in serving employees’ interests and in protecting and promoting employers’

interests. With respect to the various employment laws governing harassment and dis-

Public Personnel Management Volume 36 No. 1 Spring 2007 1

crimination—particularly Title VII of the Civil Rights Act of 1964—HR promulgates and

implements policies and procedures to ensure that all employees—supervisory and

non-supervisory—understand their rights and responsibilities and that, should the

need arise, employees know how to avail themselves of appropriate internal reporting

procedures without fear of reprisal. Through such activities, HR contributes to the

compatible goals of fostering an informed workforce, eliminating inappropriate work-

place conduct and reducing organizational liability.

In 1998, the U.S. Supreme Court provided important direction to HR through its

rulings in two landmark employment cases—Burlington Industries v. Ellerth3

(Ellerth) and Faragher v. City of Boca Raton4(Faragher). In Ellerth and Faragher,

the Supreme Court established the conditions under which an employer may be held

strictly liable and when an employer may use a defense against liability in claims of

supervisory sexual harassment or discrimination. The Supreme Court also established

reporting responsibilities for employees in these cases. In both Ellerth and Faragher,

however, the court stopped short of addressing an employer’s ability to defend against

claims of constructive discharge in situations where an employee resigns because of

alleged intolerable work conditions due to supervisory harassment or discrimination.

The Supreme Court’s failure to address employer liability in constructive discharge

claims under Title VII has produced different rulings among the circuit courts of

appeals since 1998. These differences, in turn, have increased the possibility of HR prac-

titioners providing inconsistent advice and guidance to employees and employers.

On June 14, 2004, the U.S. Supreme Court resolved the split among the circuits

in Pennsylvania State Police v. Suders5(Suders) when the court held that constructive

discharge due to a hostile work environment attributable to a supervisor is a recog-

nizable claim under Title VII.6The Supreme Court also held that an employer may

minimize its liability in such a case using the defense established in Ellerth and

Faragher (Ellerth-Faragher defense), unless the former employee resigned “in rea-

sonable response to an employer-sanctioned adverse action”7that changed the

employee’s “employment status or situation.”8Thus, through Suders, the Supreme

Court refined its 1998 Ellerth and Faragher cases to provide employers a defense

against liability in hostile environment constructive discharge cases brought under

Title VII.

In this article, we revisit the Ellerth-Faragher defense for employer liability and

discuss the significance of the Suders case on that defense, including its significance

for HR practitioners. Part I briefly reviews employer responsibility in sexual harass-

ment and discrimination cases from a statutory, administrative, and judicial perspec-

tive. Part I also outlines the Ellerth-Faragher defense. Part II summarizes the two

major opposing views within the courts of appeals that produced a split among the

circuits in relation to availability of the Ellerth-Faragher defense in constructive dis-

charge cases. Part III examines the Suders case and the effect of the Supreme Court’s

ruling in Suders on the Ellerth-Faragher defense. Part IV discusses the implications of

the Suders decision for HR practitioners. This article concludes that HR practitioners

must establish and continuously promote certain best practices throughout the organ-

ization in order to minimize employer liability in potential constructive discharge

Public Personnel Management Volume 36 No. 1 Spring 20072