High Court Resolves Circuits. Disagreement Regarding Constructive Discharge as Tangible Employment Action

On June 14, 2004, the U.S. Supreme Court, in an 8-1 decision, held that a claim of constructive discharge is not necessarily a tangible employment action preventing an employer from raising the Ellerth/ Faragher affirmative defense. The Court resolved the disagreement among the circuits regarding this issue and found that the Third Circuit Court of Appeals had erred in declaring the Ellerth/Faragher affirmative defense never available in constructive discharge cases.

The Supreme Court explained that the Ellerth/Faragher affirmative defense is available to an employer whose supervisor is charged with harassment unless the .supervisor.s official act. precipitated the constructive discharge. An .official act. is, for example, a demotion or reduction in compensation demonstrating .beyond question. the supervisor used his managerial or controlling position to cause the employee to leave the work force. .Official acts. amount to tangible employment actions and, thus, prevent an employer