542 U.S. 129 (2004)
In March 1998, the Pennsylvania State Police hired Nancy Drew Suders as a police communications operator for the McConnellsburg barracks.1 Her supervisors were Sergeant Eric D. Easton, Patrol Corporal William D. Baker, and Corporal Eric B. Prendergast.2 Those three supervisors subjected Suders to a continuous barrage of sexual harassment that ceased only when she resigned from the force.3
Easton repeatedly brought up people having sex with animals each time Suders entered his office.4 He told Prendergast in front of Suders that young girls should be given instruction in how to gratify men with oral sex.5 Baker repeatedly made an obscene gesture in Suders’ presence by grabbing his genitals and shouting out a vulgar comment inviting oral sex, doing so as many as five-to-ten times per night.6 Baker would also rub his rear end in front of her while remarking about his anatomy.7 Prendergast told Suders the village idiot could do her job and, wearing black gloves, would pound on furniture to intimidate her.8
In June 1998, Prendergast accused Suders of taking a missing accident file home with her.9 After that incident, Suders approached the PSP’s Equal Employment Opportunity Officer, Virginia Smith-Elliott, and told her she might need some help.10 Smith-Elliott gave Suders her telephone number, but neither woman followed up on the conversation.11 On August 18, 1998, Suders contacted Smith-Elliott again, this time stating that she was being harassed and was afraid.12 Smith-Elliott told Suders to file a complaint but did not tell her how to obtain the necessary form.13
Suders had several times taken a computer-skills exam to satisfy a PSP job requirement.14 Each time, Suders’ supervisors told her that she had failed.15 Suders one day came upon her exams in a set of drawers in the women’s locker room and concluded that her supervisors had never forwarded the tests for grading.16 Regarding the tests as her property, Suders removed them from the locker room.17 Upon finding that the exams had been removed, Suders’ supervisors devised a plan to arrest her for theft.18 The officers dusted the drawer in which the exams had been stored with a theft-detection powder that turns hands blue when touched.19 As anticipated by Easton, Baker, and Prendergast, Suders attempted to return the tests to the drawer, whereupon her hands turned telltale blue.20 The supervisors then apprehended and handcuffed her, photographed her blue hands, and commenced to question her.21 Suders had previously prepared a written resignation, which she tendered soon after the supervisors detained her.22 Nevertheless, the supervisors initially refused to release her.23 Instead, they brought her to an interrogation room, gave her warnings under Miranda v. Arizona, 384 U. S. 436 (1966), and continued to question her.24 Suders reiterated that she wanted to resign, and Easton then let her leave.25 The PSP never brought theft charges against her.26
In September 2000, Suders sued the PSP in Federal District Court, alleging that she had been subjected to sexual harassment and constructively discharged in violation of Title VII.27 At the close of discovery, the District Court granted the PSP’s motion for summary judgment.28 The Court of Appeals for the Third Circuit reversed and remanded the case for disposition on the merits.29 This Court granted certiorari to resolve the disagreement among the Circuits on the question whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action.30
Whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action that precludes an employer from asserting the affirmative defense to vicarious liability under Title VII?31
Under Title VII as interpreted in Ellerth and Faragher, an employer is strictly liable for supervisor sexual harassment that culminates in a tangible employment action such as discharge, demotion, or undesirable reassignment, but when no tangible employment action is taken the employer may assert an affirmative defense by proving both that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.32
No. The rule distinguishes cases based on the presence or absence of an official act precipitating the resignation.33 Although the supervisors later dusted a drawer with theft-detection powder, handcuffed Suders, and questioned her under Miranda warnings before she tendered her prepared resignation, that sequence did not constitute the type of official company act such as a demotion or pay cut that would automatically preclude the defense.34 The PSP never filed theft charges, confirming that the arrest did not effect a formal change in employment status equivalent to the tangible actions listed in Ellerth and Faragher.35
A constructive discharge resulting from supervisor harassment does not automatically constitute a tangible employment action that precludes the Ellerth/Faragher affirmative defense unless an official act of the employer precipitates the resignation.36
Related opinions on this issue
Justice Thomas dissented from the Court’s holding on employer liability.37 He argued that the current definition of constructive discharge does not require an adverse employment action taken with specific intent to force resignation.38 He maintained that this renders the claim an aggravated form of hostile work environment rather than the equivalent of an actual discharge.39
Under his view an employer is liable for such a claim only if negligent in permitting the supervisor’s conduct.40 Suders failed to proffer evidence that the PSP knew or should have known of the harassment or that any adverse action occurred because of sex, so he would reverse the judgment of the Court of Appeals.41
Whether the plaintiff or the employer bears the primary proof burdens when a plaintiff alleges a hostile-environment constructive discharge claim under Title VII?42
The plaintiff must show that the abusive working environment became so intolerable that a reasonable person would have felt compelled to resign.43 The defendant bears the burden of alleging and proving the two elements of the affirmative defense when no tangible employment action is present.44 The plaintiff has a duty to mitigate harm but the employer must prove any unreasonable failure to use available preventive or corrective opportunities.45
Yes. The plaintiff carries the initial burden to establish intolerable conditions that would compel a reasonable employee to resign.46 Once that showing is made and no official act is identified, the employer must prove both reasonable care in maintaining an effective anti-harassment policy and the employee’s unreasonable failure to avail herself of that policy.47 Suders contacted the EEO officer twice yet received no guidance on filing a complaint.48
These events left factual questions about the policy’s effectiveness and her mitigation efforts for trial under the proper allocation of burdens.49
The plaintiff bears the burden of proving intolerable conditions amounting to constructive discharge while the employer bears the burden of proving the affirmative defense elements, including the plaintiff’s failure to mitigate harm.50