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Does Constructive Discharge Bar an Employer's Defense?

By Albert J. Solecki, Jr. and Lori A. Mazur

In last month's Employment Law Strategist, we explored the background to a growing conflict among the circuit courts regarding the availability of the so-called Ellerth/Faragher affirmative defense in constructive discharge cases. We began with an analysis of Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), in which the Third Circuit held that holding an employer strictly liable for a constructive discharge resulting from the actionable harassment of its supervisors more faithfully adheres to the policy objectives set forth in Ellerth and Faragher. Granting certiorari to consider the Third Circuit's ruling, the U.S. Supreme Court has now undertaken to resolve the discord among the circuits.

Conflict Among the Courts of Appeals

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