Carolanne Hines
3 November 2013
Pennsylvania Dept. of State
Police v. Suders, 542 U.S. 129 (2004)
CASE FACTS
Nancy
Drew Suders was hired on by the Pennsylvania State Police (PSP) as a
communications operator. While employed with the department Suders
was subjected to ongoing sexual harassment by her male superiors
ranging from sexually obscene conversations about bestiality in her
presence, to sexual gestures, and sexual acts. Suders told one of the
officers who was one of the main perpetrators of the sexual
harassment that what he was doing was wrong, and he reacted by
repeating the gesture and harassment more vociferously and
frequently. Also, many of her male coworkers and supervisors demeaned
her intelligence and ability to perform the job.
The
next main incident that led to Suders resigning was being accused of
taking home a missing accident report by one of her male superiors.
She went to the PSP's Equal Employment Opportunity Officer, Virginia
Smith-Elliott, who counseled her to file a complaint and gave her a
phone number. There was no follow up to that meeting. Two months
later, Suders communicated with Smith-Elliott again, stating she was
“being harassed and afraid.” Smith-Elliott counseled Suders,
again, to file a complaint, but did not provide her with the
information on how to file a complaint. Suders felt that
Smith-Elliott was “insensitive” and “unhelpful”.
Two
days after that, Suders was arrested for theft of documents
pertaining to an employment test she had taken. Suders was told by
the same male superiors who have been harassing her that she failed
the requirements test. She found her completed, ungraded testing
documents in a locker room drawer, and realized the documents had
never been forwarded to the appropriate supervisor for grading –
she did not fail the exam, as her supervisors had said. She took the
documents from the locker room. When her supervisors realized she had
found the ungraded exams, they devised a plan for her to get arrested
for the theft of the documents. She was taken to an interrogation
room and read her Miranda Rights. She was adamant she wanted to
resign, and initially her supervisors refused to let her go, but
eventually acquiesced. The PSP never filed theft charges against
Suders.
In
September of 2000, Suders filed suit against the PSP in Federal
District Court, stating, inter
alia,
that she was sexually harassed and discharged in violation of Title
VII of the Civil Right act of 1964.
ISSUE/ISSUES
If an
employee resigns from their position due to a hostile workplace
environment brought on by ongoing harassment, can they still file
suit against the employer? Yes.
COURT DECISION AND
RATIONALE
The
Federal District Court concluded Suders' supervisors had created a
hostile work environment because of their ongoing sexual harassment,
however that the PSP was not vicariously liable. The crux of the
Federal District Court's decision was that even though Suders'
supervisors had created a hostile work environment, the PSP was not
liable for the actions of the supervisors. Using the decisions made
in Faragher v. Boca
Raton,
524 U.S. 775 (1998) and Burlington
Industries, Inc v. Ellerth,
524 U.S. 742 (1998), which distinguished between “a tangible
employment action” as a result of supervisor harassment and
supervisor harassment without the “employment action”. However,
if there is no “employment action”, as discussed by the two
cases, the affirmative defense for a employer to avoid liability is
for the employer to have policy that promptly and decisively
initiates the investigation of the reports of sexual harassment and
corrects the behavior. Also, the plaintiff must have taken advantage
of the policy that allows for reporting of sexual harassment and the
correction of the actions. In essence, the employer must have a
policy in place and exercise care when dealing with allegations of
sexual harassment and the petitioner must have used the available
resources to report the harassment. The district court also held
that because she resigned before her claims could be properly
resolved, the PSP could not be held liable. The District Court,
however, did not address her constructive discharge claim.
The
Court of Appeals reversed and remanded the decision of the District
Court. The Court of Appeals held that there was a pattern of ongoing
sexual harassment on part of Suters' supervisors. The Court of
Appeals also acknowledged Suters' constructive discharge claim under
Title VII, stating “she suffered harassment or
discrimination so intolerable that a reasonable person in the same
position would have felt compelled to resign; and (2) the employee's
reaction to the workplace situation—that is, his or her decision to
resign—was reasonable given the totality of circumstances.”
Because the Court of Appeals considered Suters' constructive
discharge as a “tangible employment action” and no longer under
the same guidelines as Faragher
and Burlington Industries.
The
Supreme Court reversed and remanded the decision of the Court of
Appeals. The Supreme Court held “To establish “constructive
discharge,” a plaintiff alleging sexual harassment must show that
the abusive working environment became so intolerable that her
resignation qualified as a fitting response. An employer may assert
theEllerth/Faragher affirmative defense to such a claim unless
the plaintiff quit in reasonable response to an adverse action
officially changing her employment status or situation, e.g., a
humiliating demotion, extreme cut in pay, or transfer to a position
in which she would face unbearable working conditions.”
DISSENTING AND CONCURRING
OPINIONS
The
decision was an 8-1, with Justices Ginsburg, Rehnquist, Stevens,
O'Connor, Scalia, Souter, Kennedy, and Breyer agreeing. Justice
Thomas dissented.
Justice
Ginsburg delivered the opinion of the Supreme Court, stating “Suders'
claim is of the same genre as the hostile work environment claims the
Court analyzed in Ellerth and Faragher.
Essentially, Suders
presents a "worse case" harassment scenario, harassment
ratcheted up to the breaking point. Like the harassment considered in
our pathmarking decisions, harassment so intolerable as to cause a
resignation may be effected through co-worker conduct, unofficial
supervisory conduct, or official company acts. Unlike an actual
termination, which is always effected through an official act of
the company, a constructive discharge need not be. A constructive
discharge involves both an employee's decision to leave and
precipitating conduct: The former involves no official action; the
latter, like a harassment claim without any constructive discharge
assertion, may or may not involve official action.”
In
Justice Thomas' dissent, he references the inception of the idea of
constructive discharge. The National Labor Relations Board (NLRB)
first developed the idea when employers were coercing employees to
resign due to the employee's union activities. The NLRB
requires two things for an employee's resignation to be considered a
constructive discharge – “First, the employer must impose burdens
upon the employee that "cause, and [are] intended to cause, a
change in his working conditions so difficult or unpleasant as to
force him to resign. Second, it must be shown that those burdens were
imposed because of the employee's union activities.”
Basing the standards of constructive
discharge on the criteria set forth by the NLRB, Justice Thomas
disagrees with the assertion that Suters' resignation was
constructive discharge because Suters' supervisors did not
specifically harass her to force her to resign. Justice Thomas states
“The Court has now adopted a definition of constructive discharge,
however, that does not in the least resemble actual discharge. The
Court holds that to establish "`constructive discharge,'" a
plaintiff must "show that the abusive working environment became
so intolerable that [the employee's] resignation qualified as a
fitting response." Under this rule, it is possible to allege a
constructive discharge absent any adverse employment action.”
In sum, the main difference between
the Supreme Court's opinion, delivered by Justice Ginsburg, and
Justice Thomas' dissent is what qualifies a constructive discharge.
Justice Thomas defers to the initial definition, while the rest of
the Justices create a new standard for constructive discharge.
CASE SIGNIFICANCE AND
ANALYSIS
This
case is important in that it sets a new standard for workplaces and
their policies on harassment. Most employees do not receive any type
of harassment training or receive any in depth instruction of the
harassment policy of the work place. This decision prompts employers
to reconsider their harassment policies simply for the sake of
liability and maintaining an effective and productive workplace.
This
is especially important for criminal justice agencies because they
are public entities – they are not private businesses. If an public
agency is held liable for anything and has to pay punitive damages,
this comes out of their budget and is paid by the taxpayers, whereas
private businesses pay out of pocket. Also, this case is important to
the criminal justice system, because criminal justice agencies are
held to higher standards. These are the people and entities trusted
to uphold the law. Because of this, their policies and actions must
reflect their integrity and if not, this can damage the relationship
the law enforcement agency has with the community.
A
policing agency must have set policies that prevent supervisors from
engaging in behavior that would create a hostile work environment and
also have appropriate reporting procedures for employees who have
been subject to harassment and need to lodge a complaint. Many
employees simply do not report harassment because of fear of
reprisal. They will either cope with it or resign and be done. By
having these types of procedures in place, this would reduce the
liability of a law enforcement agency simply under the
Faragher/Ellerth
criteria – the agency would just need to show there was policy in
place to help prevent/combat harassment, and there is a reasonable
method to report said harassment.
This way, harassment issues can be dealt with in-house and there is
no need for litigation. However, by defining and setting a standard
for constructive discharge, this allows agencies, both public and
private, to reconsider their policies and enact them in a more
effective and productive manner.
Law
enforcement agencies already have enough on their plate in the way of
liability issues stemming from general interactions with the public.
This is one area where they can obviate. Administrators, when
training new employees, should have special training set aside simply
for workplace harassment. There should also be intermittent training
for existing employees on harassment policy. If there is an issue
with harassment that has either been reported or witnessed without
formal report, it should be addressed swiftly and decisively.
STANDARDS
This
case creates a new standard for constructive discharge, where
initially the employer harassed the employee to the point of
resigning intentionally. Now, the standard for constructive discharge
is that of simply creating a hostile and untenable working
environment that causes the employee to resign.
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