>According to the US 3 ^rd Circuit Court of Appeals, use of the so-called Faragher/Ellerth defense is prohibited if a sexual harassment plaintiff can prove he or she was a victim of a constructive discharge, the Legal Intelligencer reported.

With its latest decision in Suders v. Easton , the 3rd Circuit rejected the views of sister appeals courts in the 2nd and 6th Circuits – and a handful of district courts that followed them – and opted instead to adopt the reasoning of Chief US District Judge Mark Bennett of the US District Court for the Northern District of Iowa. Bennett ruled a constructive discharge, if proved, is equal to a firing or a demotion and, therefore, renders the Faragher/Ellerth defense unavailable.

Case Background

The ruling revives a suit brought by Nancy Drew Suders, the former chief deputy sheriff and secretary to the Fulton County sheriff, who claims she was forced to quit her new job with the Pennsylvania State Police after less than five months due to the daily harassment she suffered from her male supervisors. According to court papers, Suders was hired as a police communications operator with the Pennsylvania State Police in March 1998.   From the beginning, Suders claims, she suffered mistreatment and sexual harassment so severe that she ultimately felt compelled to resign in August 1998.

The suit alleged that two state troopers often had discussions in front of Suders, and on one occasion, a trooper stated, “if someone had a daughter, they should teach her how to (engage in a sex act).” Suders said she was also offended “when (a state trooper defendant), wearing spandex shorts, would sit down in the chair near plaintiff’s workspace, put his hands behind his head and spread his legs apart.”

The Faragher/Ellerth defense – outlined in two 1998 US Supreme Court decisions – has two components. A defendant must show that:

•   it “exercised reasonable care” to prevent and promptly correct any sexually harassing behavior
•   the plaintiff unreasonably failed to take advantage of those preventive or corrective opportunities.

But the high court also said the defense was not available in cases that resulted in a “tangible employment action,” such as firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

Writing for a unanimous three-judge panel, 3rd Circuit Judge Julio Fuentes found that “removing constructive discharge from the category of tangible employment actions could have the perverse effect of discouraging an employer from actively pursuing remedial measures and of possibly encouraging intensified harassment.”

But by holding that a constructive discharge does constitute a tangible employment action, Fuentes said, “we effectively encourage employers to be watchful of sexual harassment in their workplaces and to remedy complaints at the earliest possible moment; otherwise, they risk losing the benefit of the affirmative defense should victimized employees feel compelled to resign.”