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ARTICLE · 17 JANUARY 2005

Ellerth/Faragher Affirmative Defense Extended To Claims For Hostile Work Environment Constructive Terminations

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Employers must create and enforce procedures to report and correct sexually harassing conduct.

United StatesEmployment and HR
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Originally published June 16, 2004

Employers have an affirmative defense against constructive termination claims resulting from sexual harassment committed by a supervisor brought under Title VII of the Civil Rights Act of 1964. On June 14, 2004, in Pennsylvania State Police v. Suders, the United States Supreme Court extended the Ellerth/Faragher affirmative defense to constructive termination claims. Recognizing that claims of constructive termination based on supervisory sexual harassment are essentially hostile work environment claims "ratcheted up to the breaking point," the Supreme Court held that the employers should have an affirmative defense to avoid vicarious liability in cases that do not involve an "official act of enterprise."

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