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Forced to resign.

Byline: The Register-Guard

Federal courts have spent four decades struggling to define an employer's obligation to prevent sexual discrimination in the workplace. Developing rules that are fair to all hasn't been easy. How far must an employer go to ensure that a workplace is free of sexual harassment? Under what circumstances should an employer be held liable for sexual harassment even if the employer were unaware of the problem?

The U.S. Supreme Court has before it a Pennsylvania case that challenges an important aspect of employer liability for sexual harassment. The complex case offers the court a significant opportunity to clarify its 1998 rulings on the kinds of "tangible employment actions" that increase liability with respect to harassment law.

The background: Police dispatcher Nancy Suders sued her employer, the Pennsylvania State Police, alleging she had no choice but to quit her job after enduring months of verbal abuse and harassment from male co-workers.

Suders, a wife and mother of three, claims that several of her supervisors subjected her daily to lewd talk, dirty jokes and offensive sexual comments related to breast size, oral sex and bestiality. When she confronted the men with her objections, she alleges that the response was further harassment or criticism of her job performance.

Things got worse. After what Suders said was an unfriendly and unhelpful session with an Equal Employment Opportunity officer, she was accused of stealing results of a computer test that her supervisors told her she had failed. Suders was handcuffed in her barracks, interrogated and allowed to leave, she says, only after she convinced her supervisors that she intended to resign.

She did resign, without ever filing a sexual harassment complaint against the state police. Instead, after quitting her job, she sued her former employer, alleging that her resignation was a direct consequence of the terrible harassment she endured.

Suders' supervisors deny any harassment. They claim that she was disorganized, often late and overwhelmed by her duties. They say she never told anyone about the alleged abuse until just before she quit.

Suders' claim is based on the principle of "constructive discharge," meaning that the harassment she endured in a hostile work environment was so bad it forced her to quit. She is asking the Supreme Court justices to conclude that in her case, quitting is the same thing as getting fired. That would mean "constructive discharge" could be classified as a "tangible employment action," a standard the Supreme Court outlined in 1998 to establish strict employer liability for sexual harassment. Tangible employment actions have previously been defined as formal, official acts of a company, usually documented in official company records and subject to review by supervisors.

The crucial legal issue for the court is whether the employer should be held strictly liable or be allowed to raise a recognized defense to escape liability, such as having a reasonable sexual harassment reporting mechanism in place which the complainant unreasonably failed to use.

Making constructive discharge a tangible employment action is fraught with issues for employers, which is why the state of Pennsylvania, the Bush administration and business groups want the high court to overturn a lower court's ruling in Suders' favor. Why should employers be liable for the conduct of employees who violate company policy without the employer's knowledge?

That's a good question, but Nancy Suders has a better one: Why shouldn't an employer be liable if a supervisor's relentless harassment caused an employee to resign?

Outside the sexual harassment context, the Supreme Court has repeatedly recognized that constructive discharge - a situation in which circumstances force an employee to quit - is legally the same as actual discharge. Furthermore, the Supreme Court's own definition of a tangible employment action includes recognition that such actions create a "significant change in employment status" and "inflict economic harm." It follows that being forced to resign due to intolerable working conditions changes employment status to "unemployed" and inflicts clear economic harm in the loss of salary and benefits.

The court should extend the application of constructive discharge to sexual harassment, making it a tangible employment action. Doing so would recognize that some victims are so intimidated by the abhorrent conduct of supervisors that they will not file a complaint. They'll simply flee.
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Title Annotation:Editorials; Supreme Court considers employer liability
Publication:The Register-Guard (Eugene, OR)
Article Type:Editorial
Date:Apr 12, 2004
Words:706
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