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

Date01 March 2007
AuthorJill M. Crumpacker,Martha Crumpacker
Published date01 March 2007
Subject MatterArticle
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
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

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