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On the Legal Front

Art Gutman
Florida Institute of Technology

Editorial Note: In our continuing quest to learn more about legal issues in the workplace, we are encouraging SIOP members to contribute thoughts or articles on legal issues in various countries. For example, the present column relates to sexual harassment. Anyone who has knowledge of parallel issues in Europe, Canada, Mexico, or anywhere else, please let us know either by writing such an article or forwarding ideas. Or, feel free to choose any workplace issue you think would be of interest. Please communicate your willingness to do so by e-mailing either me (artgut@aol.com) or Laura Koppes (Laura.Koppes@eku.edu).

Pennsylvania State Police v. Suders1
Is Constructive Discharge a Tangible Employment Action?

1 The at-issue case is Suders v. Easton (2003), but the petitioners are the Pennsylvania State Police.

Sexual harassment has never been addressed in this column. The good occasion has not been there. I have written about this topic elsewhere2 but never hereuntil now. The occasion is set by the Supreme Courts review of the 3rd Circuits ruling in Suders v. Easton (2003). The issue is whether constructive discharge is a tangible employment action that imposes strict liability on the employer. Strict liability means no possible defense regardless of who the harasser is and irrespective of employer policies to prevent harassment from occurring or to correct it when it does occur. By the time you read this issue of TIP, the Suders ruling will be known. No matter. The background information for this case is must-read stuff for anyone interested in workplace discrimination. So bear with me as I review that background.

2 See Gutman (2000) pages 111127. Anyone interested in a prepublished draft version of this segment, or the entire chapter, should e-mail me at argut@aol.com.

Sexual HarassmentThe Early Years

It took awhile for courts to recognize sexual harassment as a form of workplace discrimination. I have my own beliefs why this was so. Title VII of the Civil Rights Act of 1964 (CRA-64) was supposed to include only race/color, religion, and national origin as protected classes; gender was an afterthought.3 Near the end of the congressional debates on CRA-64, Senator Howard Smith insisted, very sarcastically, that ladies be protected as well. He was obliged and sex (or gender) was added to the other protected classes in the Title VII statute.

3 Technically, the protected class is sex. For most circumstances, sex means gender, but harassment is one issue where the distinction between sex as an act and sex as a gender is important. In this particular sentence I thought it was safer to say gender is the afterthought. 

To some, this was good news. The bad news is Congress does not often pass laws without research and public debate. There was little legislative history, therefore, relating to gender. The other protected classes were studied in detail. As a result, racial harassment was seen and conquered early in case law history (see Rogers v. EEOC, 1971). The early rulings on sexual harassment, on the other hand, were all over the place. A semblance of order was established in the Supreme Courts ruling in Meritor v. Vinson (1986), but Meritor proved to be an important beginning, not a long-term fix. 

In the early cases, district court judges viewed sexual harassment as an invalid Title VII claim. They saw no connection between sexual harassment and employer policies. There were four such rulings that, by todays standards, would embarrass any composer, with or without robes. In Corne v. Bausch & Lomb (1975), a supervisor engaged in repeated acts of sexual abuse and the judge viewed it as nothing more than a personal proclivity, peculiarity or mannerism by one who was merely satisfying a personal urge. In Barnes v. Train (1974), the judge ruled Barnes was discriminated against, not because she was a woman, but because she refused to engage in a sexual affair with her supervisor. In Tompkins v. Public Service (1976), the judge stated Title VII should not remedy what amounts to physical attack motivated by sexual desire that occurred in a corporate corridor rather than a back alley. Lastly, in Miller v. Bank of America (1976), the judge feared that flirtations of the smallest order would give rise to liability. Each of these rulings was later overturned by higher (circuit) courts.

Precursors to Meritor 

The late 1970s to mid 1980s saw two major issues emerge: (a) quid pro quo versus hostile environment harassment and (b) employer liability. These two issues were often intertwined. The easiest issue for the lower courts was quid pro quo, where sexual favors are demanded and unwilling participants suffer tangible employment consequences (e.g., termination, demotion, undesirable reassignment, etc.). In Bundy v. Jackson (1981), the DC Circuit endorsed strict liability for quid pro quo (with no defense), and all other courts fell into line (e.g., Henson v. City of Dundee, 1982; Katz v. Dole, 1983; Horn v. Duke Homes, 1985). This ruling was ultimately endorsed by the Supreme Court in 1998 in both Burlington v. Ellerth and Faragher v. Boca Raton. Thats why the Suders case is important; it asks if constructive discharge constitutes quid pro quo sexual harassment, thereby rendering the employer defenseless.4

4 Technically, the term quid pro quo was replaced with tangible employment action in both Ellerth and Faragher, but both terms are routinely used, and they mean the same thing. 

In contrast, the courts labored on hostile environment theory, where abusive sex-based behavior interferes with the ability to work but with no tangible employment consequences. Most courts adopted a reckless disregard standard for hostile coworkers (whether the employer knew or should have known what was going on). However, the same actions by supervisors invoked strict liability (as in quid pro quo) in some courts and reckless disregard (as for coworkers) in other courts.

Meritor v. Vinson (1986)

In Meritor, Michele Vinson had sexual intercourse on 40 to 50 occasions with Sidney Taylor, a bank vice president and Vinsons supervisor. Among other allegations, Vinson accused Taylor of public fondling and forcible rape. She was discharged for taking an indefinite leave of absence. The district court ruled against her because (a) the relationship was voluntary, (b) it was not a condition of employment, and (c) no formal complaint was filed. The DC Circuit reversed because (a) Taylors advances were unwelcome, (b) they interfered with the terms and conditions of Vinsons employment, and (c) there was strict liability because of Taylors supervisory role. 

The Supreme Court upheld the first two circuit court rulings unanimously. First, the Supreme Court acknowledged that voluntary acts may be coerced; more important, therefore, is whether the victim welcomes the attention. Second, the Court defined hostile harassment as those gender-based actions that are not welcomed and are sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. However, on the third issue, a majority of five (Rehnquist speaking for Burger, White, Powell, & OConnor) ruled:

Congress decision to define employer to include any agent of an employer.surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors.For the same reason, absence of notice to an employer does not necessarily insulate the employer from liability. [emphasis added]

In other words, employers are not automatically liable for supervisors, but then again, neither are they automatically not liable. As we will witness below, this part of the Meritor ruling was clarified in the Ellerth and Faragher rulings in 1998. 

Precursors to Ellerth and Faragher 

The next two key cases were Harris v. Forklift (1993) and Oncale v. Sundowner (1998), the latter shortly before Ellerth and Faragher. Between Meritor and Forklift, the issue garnering the most attention was whether to define hostile harassment from the perspective of a reasonable person or a reasonable victim (or woman) (compare, for example, Rabidue v. Osceola, 1986 to Ellison v. Brady, 1991). Addressing this issue in Forklift, Justice OConnor, speaking for a unanimous Court, ruled: 

Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environmentan environment that a reasonable person would find hostile or abusiveis beyond Title VIIs purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victims employment, and there is no Title VII violation. [emphasis added] 

Thus, the alleged harassment must be objectively hostile to the reasonable outsider and subjectively perceived as unwelcome by the victim. 

In addressing this issue in Onacle, Justice Scalia, speaking for a unanimous Court, said hostile harassment should be judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances. At the time, I thought this might be a compromise between reasonable person and reasonable victim. However, in recent years, all lower courts have adopted the reasonable person view. Indeed, as we will witness below, the reasonable person view is also used by the 3rd Circuit in Suders to define constructive discharge. 

As for the cases themselves, in Forklift, Charles Hardy, the boss, barraged Theresa Harris, his administrative assistant, with sexual epithets and proposals for sexual liaisons. His behavior was a documentary on how to harass. However, the district court favored Hardy on grounds that Harris psychological well being was not seriously affected. Justice OConnor replied Title VII comes into play before the harassing conduct leads to a nervous breakdown. The amount of psychological harm has implications for the amount of the money awarded for compensatory damages for pain and suffering, but OConnors ruling makes it clear that psychological harm does not itself enter into the definition of sexual harassment. All that is necessary from the victim is that the behavior is subjectively perceived as unwelcome. 

In Onacle, the victim and abusers were all males. Joseph Onacle was subject to a barrage of sex-related humiliating actions and quit after he was threatened with rape. He complained to his supervisor, to no avail. The gender of the actors proved to be irrelevant; the only important consideration is whether the hostile actions are because of sex. That means two things. First, harassment based on gender preference is not covered. Second, so-called equal opportunity harassment is covered. The latter issue relates back to the district court judge in Corne v. Bausch & Lomb (1975) who defined sexual harassment as nothing more than a personal proclivity. He also stated: 

It would be ludicrous to hold that the sort of activity involved here was contemplated by the Act because to do so would mean that if the conduct complained of was directed equally to males, there would be no basis for suit. [emphasis added]

In other words, one who harasses both males and females alike may argue there is no discrimination, since both are equally mistreated. Onacle clarifies that such equal mistreatment is illegal regardless of the target because it generally is because of sex that either target is chosen. 

The Ellerth and Faragher Rulings (1998)

In Burlington v. Ellerth, Ted Slowik, a supervisor, threatened Kimberly Ellerth with termination unless she granted him sexual favors, but he never carried out the threat. The district court ruled this was hostile harassment but ruled for the defendant on grounds that higher-level management was not in a position to know what happened (i.e., no evidence of reckless disregard). The 7th Circuit saw it as quid pro quo and favored strict liability. The Supreme Court saw it as hostile environment and favored Ellerth, but in doing so, clarified the implications for employer liability when the abuser is a supervisor. Speaking for a 72 majority, Justice Kennedy ruled:

[A]n actionable hostile environment is created by a supervisor with immediate (or successively higher) authority over employees. When no tangible employment action is taken, a defending employee may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence[comprising] two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. [emphasis added]

In plain English, reasonable care to prevent and correct means an effective policy to prevent harassment from occurring, or to correct it promptly, and unreasonable failure to take advantage means the victim, in effect, shows a reckless disregard for this policy. The employer can therefore escape liability with this affirmative defense, as long as there is no tangible employment action (i.e., no quid pro quo). 

There was a similar theme in Faragher v. Boca Raton, the major difference being that Burlington Industries is a private-sector employer and the City of Boca Raton is a municipality. Beth Ann Faragher, a lifeguard, absorbed severe and pervasive abuse by two male lifeguards, both supervisors. The employer had a policy, but Faragher had no way of knowing about it. Speaking for the same 72 majority as in Ellerth, Justice Souter repeated Justice Kennedys principle ruling in Ellerth verbatim.

So after Ellerth and Faragher, this much was clear. Strict liability applies to all tangible employment actions, but an affirmative defense exists for hostile harassment by supervisors. The Faragher ruling also addressed coworker harassment, citing from Perry v. Ethan Allen (1997), that the employer is liable if the plaintiff can demonstrate the employer provided no reasonable avenue for complaint, or knew of the harassment but did nothing about it. In other words, the employer is not vicariously liable for coworker harassment unless he knew or should have known (reckless disregard) or could have known if there was a proper avenue of complaint. 

The Impact of Ellerth and Faragher

The impact of Ellerth and Faragher was quickly felt, as several ongoing cases were analyzed or reanalyzed in light of these rulings. To illustrate this impact, lets consider two cases where employers won (Coates v. Sundor Brands, 1998 & Shaw v. AutoZone, 1999) and two where they lost (Dees v. Johnson Controls, 1999 & Gentry v. Export Packaging Company, 2001). 

In Coates, the accuser (Coates) and accused (Long) were coworkers. Coates complained to another coworker (Lee), and Lee and Coates went to an HR (human resources) representative (Sanders). The three agreed Lee would speak to Long. Long continued to harass Coates, but Sanders later inquired and Coates indicated all was well. There were other opportunities for Coates to complain, but she did not. It was only after the urging of an outside consultant that she again complained to higher ups. This time, Long was suspended without pay pending investigation and quit later that day. The 11th Circuit ruled that Sundor Brands took steps to correct what it had reason to know about but had no reason to know its earlier corrective action was ineffective. 

In Shaw, the accused (Noble) was the store manager and the accuser (Shaw) was the assistant store manager. AutoZone had a sexual harassment policy distributed to all employees in a handbook and provided extensive training for its managers. The 7th Circuit ruled the policy satisfied Prong 1 (care to protect and correct) and Prong 2 (unreasonable failure to take advantage) of the Ellerth-Faragher test. The reason was that Shaw never complained to higher level management. She quit and filed her Title VII claim, refusing even to participate in an exit interview. She also refused to be interviewed on three subsequent occasions.

The facts in Dees are analogous to Faragher. Dees worked in HR for a fire department on a U.S. Navy contract managed by World Services. The contract manager (Robb) was located in a different facility. Robb rarely visited the facility, and he testified that the fire department was a fraternity. Dees was harassed almost daily by the fire chief (Rainey) and other high-ranking fire officials. In her HR role, Dees witnessed Rainey and others nullify a formal complaint by a female firefighter. Dees was threatened with retaliation if she complained to Robb. The 11th Circuit ruled that World Services could not claim it was clueless. Basically, it lacked an effective avenue for employees to complain to contract management. Ultimately, Robb investigated Dees complaint and terminated Rainey. By that time, however, Dees had suffered 3 years of harassment, meaning the corrective action was obviously not prompt.

The facts in Gentry are analogous to Forklift. Gentry, a secretary, was abused by Broughton, much like Harris was abused by Hardy in Forklift, the difference being Hardy was the boss and Broughton was only Gentrys immediate supervisor. A jury awarded $10,000 to Gentry for compensatory damages (for pain and suffering) and $15,000 for punitive damages (for reckless disregard for the law), and these awards were upheld by the 7th Circuit. Broughtons abuse was common knowledge. For example, Broughtons immediate supervisor labeled Gentry Broughtons sex retary. The company argued it had a policy to prevent and protect, and Gentry failed to use it. The 7th Circuit ruled the mere creation of a sexual harassment policy will not shield a company that lacks an effective grievance mechanism. It was not clear who Gentry could go to, and when she went to an HR representative, that person ultimately testified that Gentry never used the magic words (sexual harassment). However, since Broughtons mistreatment of Gentry was common knowledge, the 7th Circuit ruled the company knew or should have known what was going on, and on that basis, upheld the punitive damage award.

The moral of these cases is captured in EEOC Policy Guidance N915.0025, written in June 1999 to interpret Ellerth and Faragher. The EEOC states that at a minimum, a policy to prevent and protect should contain the following six elements:5 

  • A clear explanation of prohibited conduct;
  • Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
  • A clearly described complaint process that provides accessible avenues of complaint;
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
  • A complaint process that provides a prompt, thorough, and impartial investigation; and
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

5 Policy Guidance N915.002 and its precursor, Policy Guidance N915.050, written in March 1990 to interpret Meritor, are both available on www.eeoc.gov under the link entitled Enforcement Guidances and Related Documents. Additionally, the federal laws themselves, such as Title VII of the Civil Rights Act of 1964, may be found at www.eeoc.gov under the link Federal EEO Laws.

In addition, elsewhere in its guidance, the EEOC encourages employers to advise employees of their legal rights, to use sanctions and penalties in proportion to the magnitude of the offense, and to train all supervisors and employees to understand their protections and responsibilities under the policy.

Returning to the sample cases above, where the employers lost (Dees v. Johnson Controls & Gentry v. Export Packaging), there is no way of knowing if the policies satisfied Element 1 (explanation of prohibited conduct), but it is clear from the court rulings they were weak on each of the other five elements. In comparison, in both employer victories, the plaintiffs failed on Prong 2 of the Ellerth-Faragher test by failing in their duty to notify. In Shaw v. AutoZone, the plaintiff never complained, and the employer still tried to investigate even after Shaw quit. In Coates v. Sundor Brands, the employer had reason to believe it acted promptly and effectively, and Shaw did not counter this belief when given the opportunity.

Pennsylvania State Police v. Suders

Nancy Suders was a Police Communication Officer (PCO) for the Pennsylvania State Police (PASP) for 4 months and quit. She alleged the following: (a) daily sexual abuse by three supervisors, (b) threats of retaliation by these supervisors if she complained, (c) a complaint to a PASP EEO officer that was not investigated, (d) false information by that EEO officer on how to file a complaint, and (e) purposeful misfiling of promotion test results forcing several retakes. She also alleged that on the day she quit, she was falsely accused of stealing a file and was handcuffed, photographed, and detained as a suspect. The district court granted summary judgment to PASP on the two major issues: (a) PASP sustained its affirmative defense under the Ellerth-Faragher test and (b) a claim of constructive discharge implying strict liability is invalid. 

The 3rd Circuit remanded the first issue for reconsideration on merits. If a jury believes Nancy Suderss allegations, it will likely reject PASPs affirmative defense and award compensatory and punitive damages as in Gentry v. Export Packaging Company (2001). The second issue was remanded with two stipulations. First, the 3rd Circuit issued a reasonable person definition of constructive discharge. Accordingly:

(1) he or she suffered harassment or discrimination so intolerable that a reasonable person in the same position would have felt compelled to resignthat the discrimination surpassed a threshold level of intolerability; and (2) the employees reactionwas reasonable given the totality of circumstanceswhere the working conditions were so intolerable that a reasonable person would have concluded that there was no other choice but to resign. [emphasis added]

Although this looks like two prongs, it reads like a single sentence such that a reasonable person feels compelled to resign because working conditions are so intolerable there is no other choice. The second stipulation by the 3rd Circuit was that constructive discharge, so defined, is a tangible employment action which prevents an employer from utilizing the affirmative defense.

The 3rd Circuit acknowledged two major concerns with its ruling. First, there is no commonly held definition of constructive discharge among the circuit courts. For example, the 5th, 9th, and DC Circuits have required aggravating circumstances (see Pittman v. Hattiesburg School District, 1981, Nolan v. Cleveland, 1982 & Clark v. Marsh, 1981). In addition, at least two courts (the 4th and 5th Circuits) have required proof of deliberate intent to force involuntary resignation (see EEOC v. Federal Reserve of Richmond, 1983 & Young v. Southwestern Savings & Loan, 1975). The second concern is disagreement over the central issue in this casewhether constructive discharge is a tangible employment action within the meaning of Faragher and Ellerth. The 2nd and 6th Circuits say no (see Caridad v. Metro-North, 1999 & Turner v. Dowbrands, 2000), and the 8th Circuit says yes (see Jaros v. Lodgenet, 2002). Of course, that provided the Supreme Court with the cue it needed to review the Suders ruling.

Conclusions

I admit to being confused about the definition of constructive discharge and how important the Suders ruling will be. So I did some self-help. I did three searches. First, I examined four major textbooks used in general I-O and personnel selection courses and saw no definition of constructive discharge, even in connection with sexual harassment. So I did a Proquest search among scholarly journals and found only seven references, each using the term without defining it. I then opened the search to any reference and found mainly newspaper and magazines articles using the term without definition. Sois there any consensus among us on what the definition of constructive discharge is, or do we toss the term around assuming we understand what we mean (myself included)?

Second, I reread the 1990 EEOC Policy Guidance (N-915-050) (see Footnote 5) and noticed it stated that if constructive discharge due to a hostile environment is proven, the claim will also become one of quid pro quo harassment. However, the footnote attached to this quote (#26) stated while an employees failure to utilize effective grievance procedures will not shield an employer from liability for quid pro quo harassment, such failure may defeat a claim of constructive discharge. Thats like saying it is, but its not, quid pro quo. On top of that, when I searched through the 1999 Policy Guidance (N915.002) (see Footnote 5), I saw no reference to constructive discharge at all.

Third, in reviewing the Supreme Court Oral Arguments in Suders,6 I sensed confusion among the justices themselves on one key issue. Recall, there are two claims in Suders: (a) the one involving supervisors and requiring the affirmative defense and (b) the one where there is strict liability without possibility of defense because constructive discharge is a tangible employment action. The problem is, how can a plaintiff prove constructive discharge as the 3rd Circuit defines it without disproving the employers affirmative defense? For example, Justice Scalia asked:

you say thestandards vary. Is there any jurisdiction thatrecognizes constructive discharge that does not require the employee to prove that the employee acted reasonably into avenues for redress, filing grievances and so on? Isthere any jurisdiction in which the employees reasonableness in trying to adjust things before leaving is not an elementof the claim? 

Obviously, the plaintiff must prove constructive discharge to force strict liability. Therefore, is there an extra burden on the plaintiff to prove something it does not have to prove if it only proves a supervisor was guilty of harassment? The Faragher-Ellerth test stipulates that when a supervisor harasses, the burden falls to the defendant to prove it was reasonable, not to the plaintiff to prove the defendant was unreasonable. Makes no sense to me, but what do I know? The only robe I own is a graduation gown.

6 Oral arguments for Suders were heard on March 1, 2004. There is a link for Oral Arguments on the Supreme Courts official Web site, http://www.supremecourtus.gov/.

One final thoughtthe one from the opening paragraph. I am not confused about one thing. I truly believe the background information for Suders is a must-read for anyone interested in workplace discrimination. Therefore, I hope you go back and must read the sources cited above for yourself, and let me know what you think by e-mailing me at artgut@aol.com

Reference

         Gutman, A. (2000). EEO law and personnel practices (2nd Edition). Thousand Oaks, CA: Sage Publications.

Cases Cited

Barnes v. Train (D.D.C 1974) 13 FEP Cases.
Bundy v. Jackson (CA DC 1981) 641 F.2d 934.
Burlington Industries Inc. v. Ellerth (1998) 524 U.S. 742. 
Caridad v. Metro-North Commuter R.R. (CA2 1999) 191 F.3d 283. 
Clark v. Marsh (CA DC 1981) 665 F.2d 1168.
Coates v. Sundor Brands (CA 11 1998) 164 F.3d 1361.
Corne v. Bausch & Lomb (D.Ariz. 1975) 390 F.Supp 161.
Dees v. Johnson Controls World Services, Inc., (CA11 1999) 168 F.3d 417.
EEOC v. Federal Reserve Bank of Richmond, (CA4 1983) 698 F.2d 633.
Ellison v. Brady (CA9 1991) 924 F.2d 872.
Faragher v. City of Boca Raton (1998) 524 U.S. 775. 
Gentry v. Export Packaging Co. (CA7 2001) 238 F.3d 842. 
Harris v. Forklift (1993) 510 US 17.
Henson v. City of Dundee (CA11 1982) 682 F.2d 897.
Horn v. Duke Homes (CA7 1985) 755 F.2d 599.
Jaros v. LodgeNet Entertainment Corp. (CA8 2002) 294 F.3d 960.
Katz v. Dole (CA4 1983) 709 F.2d 251.
Meritor v. Vinson (1986) 477 US 57.
Miller v. Bank of America (N.D. Cal 1976) 418 F.Supp 233.
Nolan v. Cleland (CA9 1982) 686 F.2d 806.
Onacle v. Sundowner (1998) 523 US 75.
Perry v. Ethan Allen (CA2 1997) 115 F.3d 143.
Pittman v. Hattiesburg Municipal Separate School (CA5 1981) 644 F.2d 1071.
Rabidue v. Osceola (CA6 1986) 805 F.2d 611.
Rogers v. EEOC (CA5 1971) 454 F.2d 518.
Shaw v. AutoZone, Inc.(CA7 1999) 180 F.3d 806.
Suders v. Easton (CA3 2003) 325 F.3d 432.
Tompkins v. Public Service Electric & Gas (D.N.J. 1976) 422 F.Supp 553.
Turner v. Dowbrands, Inc., (CA6 2000) No. 99-3984, 2000 WL 924599, at *1. 
Young v. Southwestern Savings & Loan (CA5 1975) 509 F.2d 140.

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