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Constructive Discharges Resulting from Sexual Harassment
In one of its most important employment decisions on the subject of sexual harassment since its landmark decisions in Burlington Industries, Inc. v. Ellerth (524 U.S. 742, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998)) and Faragher v. Boca Raton (524 U.S. 775, 808, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998)), the Supreme Court, in Pennsylvania State Police vs. Suders (124 S. Ct. 2342, 159 L. Ed. 2d 204, 2004 U.S. LEXIS 4176 (2004)), addressed the issue of a constructive discharge resulting from sexual harassment.
Nearly 6 years ago, in Ellerth and Faragher, the Supreme Court made it clear that the responsibility to eliminate sexual harassment in the workplace resides with employers and that sexual harassment training is an important component in preventing sexual harassment claims. In these decisions, the Supreme Court held that an employer can be held liable even though it is not negligent or otherwise at fault, for a hostile work environment created by a supervisor.
These cases held that an employer may defend such a lawsuit, provided that there has been no tangible adverse employment action taken against the employee, by establishing 1) that it exercised reasonable care to prevent and promptly correct any harassment; and 2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.
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