Academic journal article Labor Law Journal

The Best Advice for Sexual Harassment Victims: Don't Complain, Just Quit and Sue - Take Two

Academic journal article Labor Law Journal

The Best Advice for Sexual Harassment Victims: Don't Complain, Just Quit and Sue - Take Two

Article excerpt

Following the Third Circuit's decision in Suders v. Easton,1 a loud outcry arose in the employer community. Employers feared the Third Circuit's decision would open the litigation floodgates by encouraging employees to quit and sue, rather than complain thereby permitting the employer to address the alleged harassment.2 On june 14, 2004, the U.S. Supreme Court issued its decision in Pennsylvania State Police v. Suders3 and preserved the careful balancing of interests it had fashioned in Paragherv. City of Boca Raton4 and Burlington Industries, Inc. v. Ellerth.5

In Faragher and Ellerth, the U.S. Supreme Court built upon the principles first espoused in Meritor Savings Bank FSB v. Vinson6 and adopted a new analytical framework for evaluating claims of supervisory harassment. Under the Faragher/Ellerth framework, employers are automatically liable for supervisory harassment if the harassment culminates in a "tangible employment action" taken against the plaintiff.7 The Court denned a "tangible employment action" as an "official act" of the company such as hiring, firing, or demotion about which the employer, by definition, has knowledge. If no "tangible employment action" has occurred and the supervisor's misconduct rises to the level of actionable hostile environment harassment under the pre-Faragher/Ellerth line of cases, then the employer is vicariously liable for the supervisor's harassment, unless the employer can prove that (1) it exercised reasonable care to prevent harassment and (2) the victim unreasonably failed to avail himself or herself of the preventive or corrective measures provided by the employer.8

Since those 1998 decisions were issued, a number of lower courts have been uncomfortable with the implications of an affirmative defense to blatant supervisor misconduct. They have been unwilling to acknowledge that the duel objectives of encouraging employers to prevent harassment and encouraging employees to take reasonable steps to avoid harm are sufficiently important to create a potential bar to relief. In fact, the behavioral incentives created by Faragher and Ellerth for both companies and potential victims have had an enormously beneficial influence in fostering a supportive, non-harassing workplace culture for all employees. Those incentives have resulted, for example, in significant efforts by employers to promulgate harassment policies, establish user-friendly internal complaint procedures, and train managers and workers in what constitutes appropriate workplace conduct. These policies encourage employees to blow the whistle when they are subjected to risky behavior by supervisors, co-workers, or third parties.

The widespread application of this relatively straightforward analytical framework has identified several challenging situations. The most prominent have involved what conduct triggers automatic liability. A case in point is the Supreme Court's recent decision in Pennsylvania State Police v. Suders.9

In that case, the Third Circuit had held that a constructive discharge constituted a tangible employment action.10 The court imposed automatic liability on an employer for the harassing conduct of a supervisor despite the plaintiff's failure to utilize the employer's established complaint procedure. The Third Circuit's decision threatened to undermine the incentives put in motion in 1998 by diminishing the importance of proactive conduct and expanding the scope of vicarious liability.

On june 14, 2004, the U.S. Supreme Court vacated the Third Circuit and held that the Third Circuit "erred in declaring the affirmative defense described in Ellerth and Faragher never available in constructive discharge cases."11 The Court ruled that a constructive discharge is not itself a tangible employment action. Consequently, automatic liability is not appropriate in constructive discharge cases. For automatic liability to be appropriate in any supervisory harassment case, the plaintiff must establish a tangible employment action; that is, "an employer-sanctioned adverse action officially changing her employment status or situation. …

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