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1 (June 18, 2004)

handle is hein.crs/crsaijp0001 and id is 1 raw text is: Order Code RS21702 Updated June 18, 2004 CRS Report for Congress Received through the CRS Web Sexual Harassment, Constructive Discharge, and Employers' Affirmative Defenses: The U.S. Supreme Court Decision in Pennsylvania State Police v. Suders Charles V. Dale Legislative Attorney American Law Division Summary On June 14, 2004 the Supreme Court resolved a conflict among the federal circuits concerning the defenses, if any, that may be available to an employer against an employee's claim that she was forced to resign because of intolerable sexual harassment at the hands of a supervisor. An employer may generally assert an affirmative defense to supervisory harassment under the Court's 1998 rulings in Farager v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. The defense is not available, however, if the harassment includes a tangible employment action, such as discharge or demotion. In Pennsylvania State Police v. Suders, the plaintiff claimed the tangible adverse action was supervisory harassment so severe that it drove the employee to quit, a constructive discharge in effect. The Court, in an opinion by Justice Ginsburg, with only Justice Thomas dissenting, accepted the theory of a constructive discharge as a tangible employment action, but it also set conditions under which the employer could assert an affirmative defense and avoid strict liability. The issue is of key importance for determining the scope of employers' vicarious liability in supervisory sexual harassment cases alleging a hostile work environment. On June 14, 2004 the Supreme Court resolved a conflict among the federal circuits concerning the defenses, if any, that may be available to an employer against an employee's claim that she was forced to resign because of intolerable sexual harassment at the hands of a supervisor. An employer may generally assert an affirmative defense to supervisory harassment under the Court's 1998 rulings in Farager v. City ofBoca Raton' and Burlington Industries, Inc. v. Ellerth.2 The defense is not available, however, if the harassment includes a tangible employment action, such as discharge or demotion. In 1 524 U.S. 775 (1998). 2 524 U.S. 742 (1998). Congressional Research Service **o The Library of Congress

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