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Does Constructive Discharge Bar an Employer's Defense?
In last month's Employment Law Strategist, we explored the background to a growing conflict among the circuit courts regarding the availability of the so-called Ellerth/Faragher affirmative defense in constructive discharge cases. We began with an analysis of Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), in which the Third Circuit held that holding an employer strictly liable for a constructive discharge resulting from the actionable harassment of its supervisors more faithfully adheres to the policy objectives set forth in Ellerth and Faragher. Granting certiorari to consider the Third Circuit's ruling, the U.S. Supreme Court has now undertaken to resolve the discord among the circuits.
Conflict Among the Courts of Appeals
The Ellerth/Faragher defense allows an employer to avoid liability for unlawful harassment where the employer has an effective anti-harassment policy in place, but despite that, a harassed employee who knows about the policy fails to take advantage of it. However, the defense depends on the absence of a “tangible employment action.” Where an employee is terminated, for instance — thus giving an employee a chance to complain of an adverse “tangible employment action” rather than of a hostile work environment — an employer cannot take advantage of the defense and can be held strictly liable for the acts of its employees.
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