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Forcing a resignation kills your legal defense

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in Discrimination and Harassment,Firing,Human Resources

Here's even more incentive to end harassment at the earliest opportunity: A new court ruling says employers could give up their best defense in court if they allow workers to suffer "constructive discharge", meaning that working conditions become so intolerable for an employee that she's compelled to quit.

That's why you should drill this point home to supervisors during training: Engaging in or simply allowing em-ployee harassment makes your organization, and perhaps them, personally, liable.

Recent case: After five months as a police communications operator, Nancy Suders resigned, alleging she felt forced to quit because of daily harassment from her male supervisors. Among other things, she said the supervisors were preoccupied with discussing sex, and they punctuated their conversations with leering and suggestive actions. Suders sued for sexual harassment.

The U.S. Supreme Court has said that when a supervisor does the harassing, the employer is liable if the harassed worker suffers a "tangible employment action," such as firing or demotion. If no employment action exists, the employer has a clear defense and can avoid liability. The question here: Does a constructive discharge count as a tangible employment action? This federal appeals court said yes, meaning bad news for the employer. It didn't even matter, the court said, that Suders ignored the employer's complaint process and jumped right to a lawsuit. (Suders v. Easton, No. 01-3512, 3rd Cir., 2003)

Bottom line: This ruling is a big win for employees in the 3rd Circuit (Delaware, New Jersey and Pennsylvania), but count on its influence extending much further. Reason: Federal courts are split over whether constructive discharge qualifies as an employment action for purposes of defending a harassment claim. The 2nd (Connecticut, New York and Vermont) and 6th Circuits (Kentucky, Ohio, Michigan and Tennessee) say "no," but the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) and now the 3rd Circuit say "yes." Look for the Supreme Court to sort this issue out.

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