Almost lost in the flurry of cases released by the U.S. Supreme Court earlier this week was the Court’s decision in Pennsylvania State Police v. Suders, involving the liability of an employer when an employee finds conditions so intolerable that she quits. Admittedly, this decision would have been hard-pressed in any event to compete with this Term’s most-watched case, Elk Grove v. Newdow, determining whether the words “under God” would be stricken from schoolchildrens’ recital of the Pledge of Allegiance. However, Suders is unlikely to ever be considered all that noteworthy in its own right, rather than a middle-of-the-road logical extension of this Supreme Court’s previous sexual harasment rulings. Both employees and employers can claim victory after reading this Solomonic “split the baby” decision.
Nancy Drew Suders had had enough. She had been hired in March 1998 as a telecommunications operator by the Pennsylvania State Police (PSP), which plunged her into an environment where she was constantly barraged by sexual comments and lewd gestures. Particularly noteworthy was Sgt. Easton, who would talk about having sex with animals and how young girls should be trained to perform oral sex. Corp. Baker was no better–he grabbed his crotch and yelled “Suck it!” five to ten times a night–his rendition of a move made popular by a World Wrestling Entertainment star. (See Philadelphia Daily News article.) Corp. Prendergast just made fun of Suders, telling her that the “village idiot could do her job.” She hoped that passing a computer skills exam would entitle her to a promotion that would get her out of the barracks where she worked, away from her extremely crude coworkers where the atmosphere was “more like ‘Animal House’ than a police station.” However, she was told that she had failed the exam on several occasions, so that transferring out wasn’t an option.
In June 1998, she happened upon copies of her exams in the office, and they appeared never to have been graded, meaning that it wasn’t necessarily true that she had failed several times. She took them, so that she would have proof of the PSP’s discrimination. When Suder’s supervisors discovered that the exams were missing, they hatched a plan to catch the “thief,” dusting the drawer where they had been stored with powder that turns blue when touched. Suder went to return the exams, ended up with blue powder on her hands, and was promptly arrested for theft. When they started to question Suders, she asked to be allowed to submit her resignation letter (which she had already prepared.) The PSP initially refused to release her, and insisted on continuing her interrogation and reading Suders her Miranda rights, but finally let her resign and leave. She was never formally charged with theft.
After her tumultuous resignation, Suders filed a lawsuit against the PSP for sexual harassment and constructive discharge, which means she claimed that the circumstances of her resignation were legally equivalent to being fired by the PSP. She lost in front of the federal district court, but won before the 3rd Circuit Court of Appeals. The key issue, which the Supreme Court was ultimately required to resolve, was whether a constructive discharge, where the plaintiff resigns under circumstances “so intolerable that a reasonable person in the same position would have felt compelled to resign,” is to be considered a “tangible employment action.”
The Supreme Court had previously ruled, in the 1998 cases of Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth that for an employer to be strictly liable (i.e., automatically liable without any defenses) for a supervisor’s harassment, there had to be a “tangible employment action,” (such as discharge, demotion, or undesirable reassignment). If there wasn’t a tangible employment action, then the employer could raise two defenses: 1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and 2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
In Suder’s case, the PSP argued that there was no tangible employment action, since they never fired her and she resigned on her own, and that she didn’t complain about harassment prior to her resignation, so the PSP was never given an opportunity to take any corrective action. This persuaded the trial court to throw out Suder’s case. However, the 3rd Circuit on appeal had ruled that a termination, whether constructive or actual, constituted a tangible employment action, so the PSP did not get to raise the defense of Suder’s failure to complain.
A complete win for employees would have been a ruling similar to the 3rd Circuit’s opinion which would make a constructive discharge fully equal to a termination initiated by the employer, which would be considered a tangible employment action preventing the employer from raising any of the Ellerth/Faragher defenses. A complete win for employers would have been a ruling that under only extremely limited or no circumstances (or none at all) does a constructive discharge count as a tangible employment action, allowing employers to raise the defenses in every case where an employee quits rather than taking the harassment one more second. The Supreme Court’s ruling is a careful balance between those two extremes, with something to love for both sides. In that way, Suders is quite similar to Faragher and Ellerth, which themselves sought balance between employee and employer by creating certain strict liability situations favoring the employee, and also creating situations where the availability of defenses generally favors the employer.
The opinion was written by Justice Ruth Bader Ginsburg, and joined by all justices except for Justice Clarence Thomas, who wrote his own dissent (surprisingly not joined by his ideological partner on the Court, Justice Antonin Scalia). The Court’s holding was relatively straightforward:
We conclude that an employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor’s official act precipitates the constructive discharge; absent such a “tangible employment action,” however, the defense is available to the employer whose supervisors are charged with harassment.
This ruling essentially builds a new branch on the tree built by Faragher and Ellerth, most likely to be referred to as the “last straw.” Was the “last straw” prompting the resignation an official act by a supervisor, making the company liable? Or was it co-worker conduct or unofficial supervisory conduct, permitting the company to raise its defenses?
Given how much emphasis the Faragher and Ellerth rulings placed on ensuring that companies were punished only for the acts of supervisors and/or those with significant authority over the harassed employees, whether it was the harassment itself, or by failing to act when learning about the harassment of others, this ruling continues that trend. An employee who quits without supervisor involvement, either in the harassment itself or any corrective efforts, will still face an extreme uphill battle before the courts. However, given that these cases are extremely fact-specific, the Suders ruling provides additional fact-finding avenues (such as were the working conditions so intolerable that a reasonable person would have felt compelled to resign?). Judges are supposed to leave such fact-finding to a jury (but do so far too little.) Suders’ case has been sent back to the lower court for further fact finding, and as Suders herself acknowledges: “Justice delayed is justice denied. It’s taken this a long time to get to this point. And the battle’s still not over. It’s just begun.” (See Philadelphia Daily News article.)
Suders definitely belongs in the “refinement of existing law” category when compared to groundbreaking legal opinions such as Ellerth and Faragher. However, it provides further clarity in a hotly-contested area of the law, continues a moderate balancing approach between employee and employer, and may prove quite helpful to employees under severe harassment who quit without complaining, oblivious to their legal obligation to do so. These attributes, coupled with a healthy dose of “it could have been worse” cynicism, should lead employees and their advocates to consider this decision a generally positive outcome for workers.
Additional News Articles:
New York Times: Rules Are Set for Some Harassment Cases
Seattle Post-Intelligencer (Associated Press): Court clarifies sexual harassment ruling
Los Angeles Times: Supreme Court Clarifies Law on Sex Harassment
San Francisco Chronicle: Justices clarify sex harassment on the job
Indianapolis Star (Knight Ridder): Court delivers mixed message on harassment
Oral Argument Transcript
(a must-read which makes the outcome seem all the more positive)
Brief of the Petitioner Pennsylvania State Police
Brief of the Respondent Nancy Drew Suders
Amicus Brief for the Lawyers Committee for Civil Rights Under Law
(joined by NELA and a number of other civil rights groups)