Does Constructive Discharge Bar an Employer's Defense?

In last month's <i>Employment Law Strategist</i>, we explored the background to a growing conflict among the circuit courts regarding the availability of the so-called <i>Ellerth/Faragher</i> affirmative defense in constructive discharge cases. We began with an analysis of <i>Suders v. Easton</i>, 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 <i>Ellerth</i> and <i>Faragher</i>. Granting <i>certiorari</i> to consider the Third Circuit's ruling, the U.S. Supreme Court has now undertaken to resolve the discord among the circuits.

20 minute read February 09, 2004 at 07:32 AM

By

Albert J. Solecki, JR. And Lori A. Mazur