Constructive Discharge: Third, Second Circuit Split

The court found that the plaintiff here satisfied her burden of demonstrating a constructive discharge and the constructive discharge was the functional equivalent of an actual termination. The court noted that 'removing constructive discharge from the category of tangible employment action could have the perverse effect of discouraging an employer from actively pursuing remedial measures and of possibly encouraging intensified harassment.' The Third Circuit's ruling is in keeping with a similar ruling by the Eighth Circuit. Jaros v. Lodgenet Ent. Corp., 294 F.3d 960 (8th Cir. 2002).

In contrast, both the Second Circuit and the Sixth Circuit have disagreed. Caridad v. Metro North Commuter Railroad, 191 F. 2d 283 (2d Cir. 1999); Turner v. Dowbrands Inc., 221 F. 3d 1336 (6th Cir. 2000). In particular, the Second Circuit, in Caridad held that a constructive discharge is not a tangible employment action. Key to the Second Circuit's determination was that, unlike terminations or demotions, a constructive discharge cannot be ratified by the employer. Also, the Second Circuit emphasized that co-workers, not just supervisors, can cause constructive discharges. The Third Circuit rejected both of these arguments, noting that nothing in Ellerth and Faragher required employer ratification. The court saw no basis for the special distinction between supervisors and co-workers in this context.

The Third Circuit ruled, contrary to the position taken by the Second Circuit, that a constructive discharge is a 'tangible employment action' precluding the assertion of an affirmative defense to liability under established federal law. Suders v. Easton , 325 F.3d 432 (3d Cir. 4/16/03).

Plaintiff in this case alleged that she was forced to resign from a position with the Pennsylvania State police based on a sexually hostile work environment. She complained to the State police equal employment opportunity officer, who was unhelpful and unresponsive. According to plaintiff, the work environment deteriorated, and she alleged that she was set up on trumped up theft charges. Indeed, she was detained temporarily as a suspect. Subsequent to that, plaintiff resigned. She then sued on sex harassment grounds and argued that she was constructively discharged.

The district court dismissed the action, finding that the State police had satisfied the affirmative defense set forth in the Supreme Court's Ellerth and Faragher decisions. The Third Circuit reversed.

The court found that the plaintiff here satisfied her burden of demonstrating a constructive discharge and the constructive discharge was the functional equivalent of an actual termination. The court noted that 'removing constructive discharge from the category of tangible employment action could have the perverse effect of discouraging an employer from actively pursuing remedial measures and of possibly encouraging intensified harassment.' The Third Circuit's ruling is in keeping with a similar ruling by the Eighth Circuit. Jaros v. Lodgenet Ent. Corp., 294 F.3d 960 (8th Cir. 2002).

In contrast, both the Second Circuit and the Sixth Circuit have disagreed. Caridad v. Metro North Commuter Railroad, 191 F. 2d 283 (2d Cir. 1999); Turner v. Dowbrands Inc., 221 F. 3d 1336 (6th Cir. 2000). In particular, the Second Circuit, in Caridad held that a constructive discharge is not a tangible employment action. Key to the Second Circuit's determination was that, unlike terminations or demotions, a constructive discharge cannot be ratified by the employer. Also, the Second Circuit emphasized that co-workers, not just supervisors, can cause constructive discharges. The Third Circuit rejected both of these arguments, noting that nothing in Ellerth and Faragher required employer ratification. The court saw no basis for the special distinction between supervisors and co-workers in this context.