By Christopher Cross
In June 2004, the United States Supreme Court issued a rulling in Pennsylvania State Police v. Nancy Drew Suders centering on whether or not Title VII (sexual harassment) extends coverage to employees who constructively discharge their employment.
Constructive discharge arrises when the working environment is so hostile that effectively the employee is forced to self-terminate their employement. Generally, this also requires that the employer could reasonably foresee that its' conduct would be the causing factor, to-wit, a reasonable person in the same circumstance would do the same.
The Supreme Courts' rulling highlights the requirements for an employer to gain immunity and therein defeat a constructive discharge claim by the plaintiff - employee who sues their employer for not taking the correct steps to repair the damages caused.
In this, the Court pointed out that ----
"an employer is strictly liable for supervisor harassment that “culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Ellerth, 524 U.S., at 765; accord Faragher, 524 U.S., at 808. But when no tangible employment action is taken, both decisions also hold, the employer may raise an affirmative defense to liability, subject to proof by a preponderance of the evidence: “The defense comprises 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.” Ellerth, 524 U.S., at 765; accord Faragher, 524 U.S., at 807."
What this means is that if the employer has a sound policy in place AND enforces that policy; thereby giving the complaining employee a viable mechanism to resolve the issues at hand but who fails to take advantage of this - then the employer absorbs immunity from being sued by the complaining employee if he / she self-terminates their employment.
This is important in matters of constructive discharge because many federal courts have wrestled with defining what does and does not constitute a constructive discharge, for some time now.
Recently an employee filed a complaint of sexual harassment against the supervisor. In response, the employee was then removed from all their working opportunities; having their name and all work hours taken off the work schedule. After complaining to the manager, their name was put back on the scheule with roughly 16 hours of work given. However, still not satisified that the problems had been properly corrected, in lieu of the employee being assigned a full time position shortly before complaining about the sexual harassment. The employee went up the chain of command and filed another complaint, this time also including retaliation by the manager for having complained. And in response, the owner removed the employees name and all working hours from the schedule. Stating that this was "pending an invesigation."
In the aforementioned [true to life] circumstance, the employer cannot absorb immunity because the owner not only refused to utilize the sexual harassment policy and therein promptly correct the violations existing. But the owner went a step farther and took the most adversarial role possible against the complaining employee that inflicts severe economical damages and effectively forces the employee to constructively discharge their employment.
The point being here is that the U.S. Supreme Court recognized that constructive discharges are in fact a legitimate claim in the Courts because they often, if not frequently stem from adverse action taken against an employee because he/she complained of wrongdoing taking place in their work enviornment that is so severe or pervasive as to make it impossible to continue working.