Pennsylvania State Police v. Suders
542 U.S. 129 (2004)
Suders was the police communications operator for the Pennsylvania State Police (PSP). She alleged sexual harassment by her supervisors (Easton, Baker, and Prendergast) that ultimately led to her constructive discharge.
- Evidence of Sexual Harassment:
- Easton would bring up the subject of people having sex with animals.
- He also told Prendergast, in front of Suders, that young girls should be given instruction in how to gratify men with oral sex.
- Baker repeatedly made an obscene gesture in Suders’ presence by grabbing his genitals and shouting out a vulgar comment inviting oral sex.
- Exam Incident:
- Suders had several times taken a computer-skills exam to satisfy a PSP job requirement. Each time, Suders’ supervisors told her that she had failed.
- Suders one day came upon her exams in a set of drawers in the women’s locker room. She concluded that her supervisors had never forwarded the tests for grading and that their reports of her failures were false. Regarding the tests as her property, Suders removed them from the locker room.
- Her supervisors then arrested her for theft.
- EEOC Contact:
- June 1998: Suders approached the PSP’s EEOC officer, Virginia Smith-Elliott, and told her she “might need some help.” Smith-Elliott gave Suders her telephone number, but neither woman followed up on the conversation.
- August 18, 1998: Suders contacted Smith-Elliott again, this time stating that she was being harassed and was afraid. Smith-Elliott told Suders to file a complaint, but did not tell her how to obtain the necessary form.
- The District Court granted summary judgment for state police.
- She unreasonably failed to avail herself of the PSP’s internal antiharassment procedures.
- The Court of Appeals reversed and remanded.
- It held that a constructive discharge, when proved, constitutes a tangible employment action.
(1) The question presented concerns the proof burdens parties bear when a sexual harassment/constructive discharge claim of that character is asserted under Title VII.
(2) 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.
“We hold that the Court of Appeals erred in declaring the affirmative defense described in Ellerth and Faragher never available in constructive discharge cases. Judgment vacated and remanded.”
(1) Hostile Work Environment
The offending behavior must be ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment.’
(2) Constructive Discharge
This requires a further showing: That working conditions have become ‘so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.’
Employer’s Affirmative Defense (unless there was a tangible employment action)
(1) The employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior – i.e., a readily accessible policy for resolving complaints; and
(2) The plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.
- Note: The burden here is on the defendant to prove that P unreasonably failed to avoid or reduce the harm.
- When official act (i.e., a ‘tangible employment action’) does not underlie constructive discharge, the extent to which supervisor’s alleged creation of hostile environment has been aided by agency relation is uncertain.
- That uncertainty justifies affording the employer the chance to establish, through affirmative defense, that it should not be held vicariously liable for supervisor’s misconduct.
When Employer’s Affirmative Defense Is NOT Available (strict liability)
If harassment culminates in a tangible employment action (e.g., discharge, demotion, undesirable reassignment, extreme paycut, etc.), employers are strictly liable.
- An official act is reflected in company records and shows beyond question that the supervisor has used his managerial or controlling position to the employee’s disadvantage – it can be viewed as a company act.