Supreme Court Decides That The Faragher-Ellerth Affirmative Defense Is Available To Employers In Sexual Harassment, Constructive Discharge Claims

On June 14, 2004 the Supreme Court ruled that a constructive discharge does not constitute a tangible employment action sufficient to deprive an employer of its affirmative defense to sexual harassment liability under Title VII, 42 U.S.C. § 2000e et seq. The decision resolves a split in opinion within the courts of appeals and is of significance to employers nationwide.

The affirmative defense, originally set forth in the Supreme Court companion cases, commonly known as, “Farragher and Ellerth,” allows an employer to avoid liability to hostile work environment liability where (a) “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (b) “the plaintiff employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise.” The defense is not available where one or more supervisors have taken a “tangible employment action” against the employee, and as a result, the courts of appeals disagreed as to whether the concept of tangible employment actions should include employee resignations that a court later characterizes as a “constructive discharge.”

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