When Quitting is Fitting: The Need for a Reformulated Sexual Harassment/Constructive Discharge Standard in the Wake of Pennsylvania State Police V. Suders

Abstract

The legal landscape with respect to constructive discharges resulting from sexually harassing conduct has been mired in confusion for the past two decades. Courts generally have applied a multi-step analysis that requires plaintiffs to establish both the existence of severe or pervasive sexual harassment as well as additional aggravating factors warranting an employee's resignation. The courts, however, have had a difficult time in defining the contours of the separate harassment and constructive discharge tests. The Supreme Court has weighed in on several occasions, but rather than opt for clarity, the Court has created new tests and new terminology that have compounded the confusion. The recent Pennsylvania State Police v. Suders decision is a case in point. In that 2004 decision, the Court ruled that an employer is strictly liable for harassment that results from a supervisor's official act, but is subject to liability for other types of supervisor harassment only if employer negligence is established. The Court's use of the "official action" and "constructive discharge" concepts in that case sets an unpredictable course and fails to correct the unfairness of the current multi-tiered analytical framework.

This article attempts to simplify and recalibrate the sexual harassment/constructive discharge standard. We propose a Unitary Constructive Discharge Standard that would provide a single mode of analysis applicable to all claims of constructive discharge resulting from workplace sexual harassment. The proposal merges elements of the current strict liability and negligence tests and asks a single question: did the employer fail to redress sexual harassment of which it was or should have been aware such that quitting was a fitting response for the employee subjected to the harassment? The proposal jettisons two of the most unfair elements of the current calculus, namely the requirement that the harassment victim must always utilize formal complaint procedures and the requirement in some circuits that an employee quit is actionable only if the employer subjectively intended that result. While thereby removing the necessity for employees to make out a case of "aggravated" harassment in the constructive discharge context, the Unitary Standard nonetheless protects employer interests by ensuring that no liability will ensue in the absence of causal fault attributed to an agent of the employer. The result is a test that is both more simple and fair.