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Author: Tom Shumaker, Esq.
September 19, 2020

My favorite opinion by Associate Justice Ruth Bader Ginsburg is Pa. State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342 (2004)–perhaps because it is the one that has most impacted my practice. Suders not only defined when employers can be vicariously liable for Title VII constructive discharge claims, but it also is an example of Ginsburg’s powerful legacy.

A constructive discharge is a type of “hostile work environment” claim, where the harassment was not only severe and pervasive but also left the employee with no practical choice but to resign. To establish a “constructive discharge” in violation of Title VII, a plaintiff must show that he/she suffered a sex-based or race-based harassment that was so intolerable that a reasonable person would have felt compelled to resign.

The facts of the Suders case were straightforward and all too common. A new, female employee suffered a continuous barrage of sexual harassment from her supervisors for over six months. After the harassment continued to escalate, she reported it to the employer’s HR department, stating that it had become so bad she was afraid. Two days later, Suders resigned because the harassment had gotten even worse.

Before the case went to trial, the federal trial court granted summary judgment in favor of the employer, finding that the employer was not vicariously liable for the supervisors’ harassment under the Supreme Court’s Ellerth and Faragher decisions. The Ellerth and Faragher decisions established that an employer is not liable for a supervisor’s harassing conduct if the employer can prove, among other things, that the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Applying that rule, the trial court found that the employer was not liable because Suders did not give the HR department sufficient chance to respond to her complaints when she resigned two days after reporting the harassment. Since Title VII does not allow for individual liability, this ruling meant that Ms. Suders was left with no recourse.

It took several years for this case to come before the Supreme Court and be assigned to Associate Justice Ginsburg to write an opinion. In her opinion (which 7 other justices signed), Ginsburg ruled that a constructive discharge “may be effected through …unofficial supervisory conduct, or official [tangible] company acts.” Ginsburg’s opinion then remanded the case back to the trial court to determine whether the constructive discharge claim involved any “tangible” or “official” supervisory acts.

That ruling, when combined with the rulings in the Ellerth and Faragher decisions, provided much-needed clarity to employment discrimination law. When a constructive discharge claim involves a “tangible employment action” –such as a pay cut, demotion or termination–the employer is automatically liable for the supervisor’s misconduct. But when a constructive discharge claim is limited to unofficial supervisory harassment, the employer is not liable if it can prove that the employee did not reasonably attempt to utilize that employer’s anti-harassment programs.

While the Suders opinion is often cited as a pro-employer decision, plaintiffs’ lawyers have frequently used it to explain: 1) how unlawful harassment can become so intolerable that an employee is legally considered to have been fired, even though they technically resigned; and 2) when and why an employer should be vicariously liable for such intolerable harassment.
It is but one example of Associate Justice Ginsburg’s legacy of long-lasting impact upon the law.

If you have questions about how to defend or present a workplace harassment lawsuit, attorney Tom Shumaker of the Ernest Law Group can help. Formerly Inside Council for a Fortune 300 Corporation, Tom now leverages his 25 years of Labor & Employment litigation experience to assist employees and businesses. Tom can be reached at (757) 289-2499 or [email protected].

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