By Lindy Korn, Esq.

The United States Supreme Court on June 14th, 2004, decided the case of Pennsylvania State Police ~v~ Nancy Drew Suders, with Justice Ginsburg delivering the opinion of the Court. As a Title VII plaintiff, Nancy Drew Suders, claims she was constructively discharged from her job as a result of sexual harassment and the issue was whether or not a constructive discharge could qualify as a tangible employment action, thereby preventing her employer from asserting an affirmative defense. The Court held that “the affirmative defense will not be available to the employer if the Plaintiff quits in reasonable response to an employer-sanctioned adverse action, officially changing her employment status or situation, for example, a humiliated demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions.” However, the Court left open the possibility that if the proof falls short of an employer sanctioned adverse action, then the affirmative defense set forth in Burlington Industries, Inc. v Ellerth, 524 U.S. 742, and Faragher v City of Boca Raton, 524 U.s. 775, would still be available to the employer.


In March of 1998, the Pennsylvania State Police hired Suders as a Police Communications Operator. Three supervisors subjected Suders to continuous barrage of sexual harassment that ceased only when she resigned from the force. Easton (a supervisor) would bring up the subject of people having sex with animals each time that Suders entered his office. He told another supervisor, named Prendergast, in front of Suders, that young girls should be given instructions in how to gratify men with oral sex. Supervisor Easton would also sit down near to Suders wearing spandex shorts and spread his legs apart. Apparently imitating a move popularized by television wrestling, Supervisor Baker, repeatedly made an obscene gesture in Suders’ presence by grabbing his genitals and shouting out a vulgar comment, inviting oral sex. Supervisor Baker made this gesture as many as 5 to 10 times per night throughout Suders’ employment at the barracks. Suders once told supervisor Baker she “didn’t think he should be doing this”, and supervisor Baker responded by jumping on a chair and again performing this gesture, with the accompanying vulgarity. Further, supervisor Baker, would rub her rear-end in front of her and remark, “I have a nice ass, don’t I”? Supervisor Prendergast told Suders, “the village idiot could do her job, wearing black gloves, and he would pound on furniture to intimidate her. In June of 1998, supervisor Prendergast accused Suders of taking a missing accident home with her, after that incident, Suders approached the Pennsylvania Police’s Pennsylvania Equal Employment Opportunity officer and told her she might need some help. The EEO officer gave Suders her phone number, but neither woman followed up on the conversation. On August 18th, 1998, Suders contacted the EEO officer again this time stating she was being harassed and was afraid. The EEO officer, told Suders to file a complaint, but did not tell her how to obtain the necessary forms. The EEO officer’s response and the manner in which it was conveyed appeared to Suders insensitive and unhelpful. Two days later, Suders’ supervisors arrested her for theft and Suders resigned from the force. The Pennsylvania State Police never brought theft charges against her. In September 2000, Suders sued the Pennsylvania State Police in Federal District Court alleging that she had been subjected to sexual harassment and constructively discharged in violation of Title 7 of the Civil Rights Act of 1964.


The Supreme Court held, that “when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold calls for extension of the affirmative defense to the employer…. This affirmative defense will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer – sanctioned adverse action officially changing her employment status or situation, for example a humiliating demotion, extreme cut in pay, or transferred to a position in which she would face unbearable working conditions.” The emphasis on an employer sanctioned adverse action goes to the heart of a tangible employment action which falls within in the parameters of a supervisor or high manager who has been empowered by the company or employer as an agent to make economic decisions effecting other employees under his or her control. (See Ellerth, Supra) Thus, when a supervisor makes a tangible employment action against a subordinate the affirmative defensive will not be permitted to allow the employer to escape liability.


As a result of Suders’ Supreme Court decision, attention to proof of official acts, which underlie or cause the constructive discharge, will determine whether or not a tangible employment adverse action exists. To prevent such tangible employment actions employers should pay special attention to their policies and trainings for supervisors and high-level management to insure that they do not create absolute vicarious liability for the enterprise or employer. More emphasis will probably will also center on whether the employee’s decision to resign was reasonable under the circumstances of a particular case, towards that end, an employer’s effective remedial policies and practices including effective investigations and complaint procedures, which are user friendly, will become of utmost importance.