A plaintiff’s decision to quit her job is within her discretion. But the Supreme Court, in Pennsylvania State Police v. Suders, 124 S.Ct. 2342 (2004), determined that a plaintiff who quits her job after being sexually harassed by her supervisor may be able to benefit in her lawsuit from her unilateral decision.

By way of background, in supervisor harassment cases, whether there is a “tangible employment action” from the supervisor’s harassment is important. If the harassment culminates in a tangible employment action, then an employer will be vicariously liable for the sexually harassing conduct. If there is no tangible employment action, then the employer can avoid liability by showing an affirmative defense: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 742, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). A “tangible employment action” is generally defined as one making a significant change in employment status, such as hiring and firing, failing to promote, and reassignment with significant changes in responsibilities. Burlington 118 S.Ct. at 2268-2269.

Before Suders, the circuit courts were split regarding whether a plaintiff, who quit her job because her working conditions were intolerable as a result of supervisor harassment, had suffered a “tangible employment action.” Under Suders, whether this is a tangible employment action depends on the circumstances and the following analysis. First, is there a constructive discharge? This requires a plaintiff to show her working conditions were so intolerable that a reasonable person would have felt compelled to resign. Second, if there was a constructive discharge, did the employee quit in response to some “official act” by the harassing supervisor brought about by the harasser’s supervisory position (such as a demotion or reduction in pay)? If so, the constructive discharge will be considered a “tangible employment action” and the employer will be liable for the harassment. If not, the employer will be able to introduce evidence to try to show the affirmative defense.