By Vincent J. Tersigni, Esq.

In its June 15, 2004 decision in IBM Corp., 341 NLRB No. 148 (2004), the National Labor Relations Board reversed its course and held that non-unionized employees now no longer have the right to have a coworker representative present at an investigatory interview by their employer which might lead to discipline.  

The rights of unionized employees to have representation at investigatory interviews was established by the U.S. Supreme Court in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).  The NLRB has changed its position on the applicability of Weingarten rights to non-unionized employees several times.  The NLRB first extended Weingarten rights to non-union employees in 1982, then reversed its decision in 1985.  In Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. 676 (2000), the Board returned to its position from eighteen years earlier and held that non-union employees are entitled to co-worker representation at investigatory interviews which may lead to discipline. 

Through its decision in IBM Corp., the NLRB has now reversed course again, despite the fact that its decision in Epilepsy Foundation has been upheld by the U.S. Court of Appeals for the District of Columbia Circuit.  As a basis for its decision, the NLRB noted the critical distinction between an employer’s ability to deal with employees on an individual basis in a non-union workforce, as compared to the unionized setting where the representative derives his authority from the collective bargaining agreement and the consent of employees to collective representation. 

In IBM Corp., the NLRB stated:  “On balance, the right of an employee to a coworker’s presence in the absence of the union is outweighed by an employer’s right to conduct prompt, efficient, thorough and confidential workplace investigations.”  The Board stated further that:  “It is our opinion that limiting this right to employees and unionized workplaces strikes the proper balance between the competing interests of the employer and employees.” 

Therefore, based on the NLRB’s recent decision in IBM Corp., non-unionized employers may now conduct investigatory interviews and disciplinary meetings with employees without the obligation to permit the employees to include a representative in the meeting.  The decision not only reduces potential employer liability for noncompliance with the board’s former Epilepsy Foundation decision, but also permits employers to conduct investigatory interviews in a more confidential manner.

Vincent Tersigni is a Shareholder and the Employment Law Practice Group Leader.  He can be reached at vtersigni@bdblaw.com or 330.258.6552.

By Jan E. Hensel, Esq.

In a decision issued on June 14, 2004, the United States Supreme Court, in Pennsylvania State Police v. Suders, held that an employee who stated that she was forced to resign from her job because of a sexually harassing hostile work environment created by three of her supervisors could sue her employer under a “constructive discharge” theory under Title VII of the 1964 Civil Rights Act.  However, the Court held unless the employee could show that the resignation was precipitated by an official adverse job action of the employer, the employer is entitled to assert an affirmative defense and avoid vicarious liability for the supervisor’s act by showing that the employer had in place a complaint system that the employee unreasonably failed to use before quitting.   

In Suders, the Third Circuit Court of Appeals had held that a constructive discharge itself constitutes a tangible adverse employment action.  Therefore, the Court concluded that when a supervisor’s sexual harassment culminates in a constructive discharge, under the Supreme Court’s 1998 decisions in Burlington Industries, Inc. v. Ellerth,  and Faragher v. Boca Raton,  the employer is strictly liable and is precluded from asserting the affirmative defense announced in those decisions.  Both the Second Circuit and the Sixth Circuit Courts of Appeals had reached a different conclusion:  that a constructive discharge resulting from a hostile work environment created by a supervisor’s sexual harassment does not qualify as a tangible employment action, and therefore does not preclude an employer from invoking the Ellerth/Faragher affirmative defense.   

On appeal, the Supreme Court resolved the conflict between the federal circuit courts by holding that a constructive discharge resulting from a supervisor-created hostile work environment constitutes a tangible employment action only in a very narrow set of circumstances.  Specifically, the Court held that only when the plaintiff quits in reasonable response to an adverse action officially changing her employment status or situation, e.g., a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions, does the constructive discharge constitute a tangible employment action.

Nancy Drew Suders was hired in March 1998 by the Pennsylvania State Police (“PSP”) to work as a police communications officer.  From the commencement of her employment, her three male supervisors subjected her to a barrage of sexual harassment, including frequent sexual comments, obscene gestures, and derogatory remarks.  In June 1998, Suders approached the PSP’s Equal Employment Opportunity (“EEO”) officer and told her she might need some help. 

In August, 1998, Suder again approached the EEO officer, this time stating that she was being harassed and felt afraid.  The EEO officer told her to file a complaint, but did not tell her how to obtain the necessary form. 

Two days later, Suders’ supervisors arrested her for theft of her own computer-skills exams.  Suders had taken the exam several times; each time, Suders’ supervisors told her that she had failed.  Suders found her exams in a drawer in the women’s locker room and, concluding that her supervisors had never forwarded them for grading, removed them.  Upon discovering the missing exams, her supervisors dusted the drawer with a theft protection powder that turns hands blue when touched.  When Suders attempted to return the exams, the supervisors apprehended and handcuffed her, photographed her blue hands, and questioned her.  Suders then resigned.

Suders filed suit in Federal District Court alleging that she had been sexually harassed and constructively discharged in violation of Title VII.  The District Court granted the PSP’s motion for summary judgment.  Although the court found that Suders’ testimony gave rise to a question of fact as to whether her supervisors had created a hostile work environment, it granted judgment in favor of PSP on the basis of the Ellerth/Faragher affirmative defense.  Under those decisions, when supervisor sexual harassment culminates in no tangible employment action, the employer may raise an affirmative defense comprised of two elements:  (a) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (b) that the Plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.  The District Court concluded that, by resigning just two days after she first mentioned harassment to the EEO officer, Suders did not give the PSP the opportunity to respond to her complaints. 

The Third Circuit reversed and remanded.  Although it agreed with the District Court that the evidence was sufficient to permit a trier of fact to find that the actions of Suders’ supervisors created a hostile work environment, it disagreed with the District Court in two fundamental respects.  First, it held that, even assuming the PSP could raise the affirmative defense, genuine issues of material fact existed as to the effectiveness of PSP’s program to address sexual harassment claims.  Second, it held that the District Court erred in failing to recognize that Suders had stated a claim of constructive discharge due to the hostile work environment.  It then made the ruling challenged in the Supreme Court:  that a constructive discharge, when proved, constitutes a tangible employment action, precluding assertion of the Ellerth/Faragher affirmative defense. 

The Supreme Court first examined the history of the constructive discharge doctrine.  The doctrine originated in the labor law field in the 1930’s, when the National Labor Relations Board developed it to address situations in which employers coerced employees to resign, often by creating intolerable working conditions, in retaliation for employees’ participation in collective activities.  Although the Courts of Appeals and the Equal Employment Opportunity Commission both had recognized constructive discharge in Title VII claims, the Supreme Court had not previously recognized a constructive discharge claim outside of the labor law context.  It explicitly did so in Suders. 

The Court went on to state that the Suders case addressed one subset of Title VII constructive discharge claims:  constructive discharge resulting from sexual harassment, or hostile work environment, attributable to a supervisor.  To state a claim of constructive discharge from an “aggravated case” of sexual harassment, the plaintiff must make a greater showing than that required to establish an actionable hostile environment (that the offending behavior is sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive working environment).  To prevail upon the “compound claim” of hostile environment constructive discharge, the Court held that a plaintiff must show working conditions so intolerable that a reasonable person would have felt compelled to resign. 

To determine whether the constructive discharge constitutes a tangible employment action, the Court returned to the agency principles of its “pathmarking decisions,” Faragher and Ellerth, which established the framework governing employer liability for sexual harassment by supervisors.  That framework was constructed on the foundation set forth in The Restatement (Second) of Agency:  that an employer is liable for the acts of its agent when the agent was aided in accomplishing the tort by the existence of the agency relation.  In those cases in which the supervisor takes a tangible employment action, such as firing, failing to promote, or reassignment with significant change in responsibilities, he or she is exercising the power bestowed by the company to make employment decisions affecting the employees under his or her control.  Therefore, in such circumstances, agency principles compel a finding of employer liability. 

The Court recognized that unlike an actual termination, which is always effected through an official company act, a constructive discharge may or may not involve official action; harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts.  Absent an official act of the company as the last straw leading to the employee’s decision to resign, the extent to which the supervisor’s conduct has been aided by the agency relationship is unclear.  Therefore, in the absence of such a precipitating official act, the employer must be afforded the opportunity to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable. 

The Court observed that the affirmative defense established in Ellerth and Faragher accommodates the “avoidable consequences” doctrine Title VII borrows from tort law by requiring the plaintiff reasonably to stave off harm.  Following Ellerth and Faragher, the Suders Court held that the plaintiff who alleges no tangible employment action has the duty to mitigate harm, but the Defendant bears the duty to allege and prove that the plaintiff failed in this regard.  Thus, the employer bears the burden of pleading and proving the Ellerth/Faragher affirmative defense in a hostile environment constructive discharge claim when the resignation was not precipitated by an official act of the company.  

The Suders decision is generally pro-employer.  By refusing to recognize a constructive discharge as a tangible employment action except in the narrowest of circumstances, the Court has allowed employers to maintain some degree of control over their own liability for hostile environment sexual harassment claims.  So long as the employer takes the reasonable steps of establishing effective anti-harassment policies and effective grievance mechanisms, the employee cannot simply quit in response to sexual harassment and maintain an actionable claim.  Instead, the employee has an affirmative duty to mitigate the harm done by working within the framework of the policy and providing the employer the opportunity to address and correct the problem.  Thus, the Suders decision reaffirms the importance of maintaining, publishing and providing frequent training on effective sexual harassment policies.

Jan Hensel is a Shareholder in our Employment Law Practice Group.  She can be contacted at jhensel@bdblaw.com or 614.227.4267.

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