How Should Harassment Victims' Claims of "Constructive Discharge" Be Treated?
A Question the Supreme Court Soon Will Confront

Next week, the Supreme Court will hear oral argument in Pennsylvania State Police v. Suders. The case is a significant one, for it tests an important aspect of employer liability for sexual harassment.

The case involves a claim of constructive discharge--specifically, that the employee's supervisor created an environment so sexually hostile that she was forced to quit. The question for the court is whether the employer in such a case should be held strictly liable or should be able to raise a recognized affirmative defense to liability.

The Court, I will argue, should treat hold that strict liability is appropriate.

As I have discussed in a prior column, the case before the Court arose when Nancy Suders filed suit against her employer, the Pennsylvania State Police. Suders alleged that the pattern of harassment she endured, at the hands of several supervisors, was so severe and pervasive that she was ultimately forced to quit.

Suders alleged, in particular, that several of her supervisors regularly directed offensive sexual comments and gestures at her, which related to breast size, oral sex, and bestiality. She also alleges when she confronted them on several occasions about this, her complaints were met either with further harassment, or with derision about her job performance.

Suders also sought help from the Equal Employment Opportunity (EEO) Officer who had taught the sexual harassment training class Suders had attended. But the Officer, she alleges, was unfriendly and unhelpful -- telling her to file a complaint but refusing to help her find the right form.

Suders also contends that her supervisors harassed her in another way. She had repeatedly taken a computer skills test, and did not believe her supervisors' report that her tests had been sent in for evaluation, and that she had failed. She found her exams in a drawer in the women's locker room, confirming, she believed, her suspicion.

Realizing the tests were missing, Suders's supervisors put theft detection powder on the drawer. When Suders went to return the exams, her hand turned blue. The officers in her barracks handcuffed her and treated her like an accused suspect. She was questioned and allowed to leave only when she convinced them of her intent to resign.

Later, Suders did in fact resign.

Suders' legal argument is straightforward: Her supervisors created a sexually hostile work environment. The harassment was so bad, it forced her to quit. And this forced quitting should be treated, for legal purposes, like a firing.

This theory draws on the employer liability framework established by the 1998 Supreme Court decisions in Faragher v. City of Boca Raton and Burlington Industries v. Ellerth -- a framework that I discussed at length in my earlier column on this case.

Within this framework, an employer is strictly liable for harassment that results in a "tangible employment action" against the victim -- such as a firing. ("Strict liability" is, in this context, liability without the ability to raise affirmative defenses that might provide an escape.) It follows that if a "constructive discharge" counts as a "tangible employment action," an employer will be strictly liable for harassment that results in constructive discharge.

But does constructive discharge count as a "tangible employment action"?

The Supreme Court has never spoken directly to that question.

The Supreme Court defined a "tangible employment action" in Faragher and Ellerth to include "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."

Obviously, "constructive discharge" is not on the list.

However, the Court offered this list by way of example, and left open the possibility that other actions would qualify as well.

What are the arguments in favor of counting "constructive discharge" as a "tangible employment action" -- in essence, a firing -- in the sexual harassment context?

First, outside the harassment context, the Supreme Court has repeatedly recognized that constructive discharge -- that is, a situation where quitting is the only solution -- is legally indistinguishable from actual discharge. And the EEOC has taken this position. It makes sense to apply this general legal rule -- a rule favored by the agency charged with enforcing the relevant law -- in this particular context, just as we do in other contexts.

Second, constructive discharge fits the Supreme Court's own definition of a "tangible employment action." The touchstone is whether the action constitutes a "significant change in employment status." Also, most such actions will "inflict economic harm."

Being forced to resign due to intolerable conditions plainly significantly changes employment status: The employee is now out of a job. It also plainly inflicts economic harm: Because the employee is out of a job, she loses salary and benefits.

Exceptions to strict liability are crafted to penalize the unreasonable non-complainer. And typically, that is not the person who is constructively discharged. It's hard to imagine a situation where it was both unreasonable not to complain, and yet reasonable to walk off the job. Often, victims walk off precisely because they were either too afraid to complain, for fear of retaliation or further harassment, or already did complain, to no avail.

Fourth, there is no "floodgates" problem here -- not all harassment will result in strict liability, even if harassment that results in "constructive discharge" does. After all, not all hostile environments are intolerable; and most victims do not quit their jobs no matter how bad the situation is.

Indeed, the Supreme Court held a decade ago that illegal harassment need not drive a victim to psychological breakdown, or even inflict any tangible emotional harm. And harassment cases that do not result in a tangible adverse action will not trigger strict liability, no matter what.

What are the arguments against counting "constructive discharge" as a "tangible employment action" -- in essence, a firing -- in this context?

The Pennsylvania State Police, taking this position, drew on Faragher's and Ellerth's rough distinction, based on agency principles, as to when liability should be strict. According to the Court, liability should generally be strict when the supervisor was aided in accomplishing the harassment by the authority delegated by his employer. Otherwise, liability should generally be subject to the affirmative defense based on the reasonableness of the employer's actions and the unreasonableness of the victim's.

The Police argue that when the employee is forced to quit, the supervisor's authority has not aided in accomplishing the harassment. But this is not necessarily true. Indeed, an appreciation of a supervisor's power and authority in the workplace may actually be a factor in an employee's reasonable decision that she must quit her workplace, rather than stay and hope for redress. The more powerful the supervisor, the more an employee may feel she has no choice other than to quit.

Drawing on this language, the Solicitor General took the position that constructive discharge is a "tangible employment action" only when it results "in significant part" from a supervisor's official acts -- as opposed to his harassing conduct.

But that would mean, in practice, that constructive discharge is never a "tangible employment action" -- and thus, the Solicitor General's "compromise" is really no compromise at all.

Obviously, supervisors who force employees out don't file the same paperwork they would to formally fire them. They don't get approval from higher-ups. They don't document their deeds. Instead, they just make an office unlivable, so that the employee can't bear to go to work. Forcing someone out is the kind of action supervisors cover up, not the kind they document!

Granted, constructive discharge does not fit the "use of company authority" test cleanly for these very reasons: Higher-ups may not know what is occurring precisely because it isn't documented or official, and the victim's resignation may appear to be voluntary.

But it would be ironic indeed if employers were rewarded with exemptions to strict liability precisely when their supervisors act most despicably -- ignoring normal evaluation and termination processes to covertly intimidate and harass an employee out of the workplace.

Moreover, were the Supreme Court to adopt the Solicitor General's approach, it would betray the central goals of Title VII: to prevent discrimination and compensate its victims. Giving harassers an advantage for skipping the paperwork and ramping up the harassment, to drive an employee out, is hardly what Congress wanted to do when it enacted Title VII.

So what should the Court do in this case? It should hold that constructive discharge is -- in this context, as in others -- tantamount to a firing. But it should also reconsider its whole approach to such cases, and put less stress on the idea that a "tangible employment action" must also be an "official act."

Noted feminist scholar Martha Chamallas has proposed that, instead, courts should focus strictly on causation. If the supervisor's harassment caused the plaintiff to resign, then the plaintiff should be able to recover from the employer (subject to the usual duty to mitigate damages by finding comparable employment post-resignation).

This approach, Chamallas argues, is more realistic about supervisory power, which often comprises both formal and informal aspects. It also would permit courts to take into account how typical victims behave.

Real-life victims simply don't file formal complaints at the drop of a hat. And sometimes, after encountering severe harassment, they simply find it impossible to go to work one day -- and never come back. And that is understandable: Severe harassment can be demeaning, terrorizing, frightening, and traumatic.

The Court should hold that an employer is strictly liable for employing supervisors who treat their subordinates so abominably as to compel their resignation. A drumming out is as bad as -- if not worse than -- a firing.