Ohio State Law Journal
The legal landscape with respect to constructive discharges resulting from sexually harassing conduct has been mired in confusion for the past two decades. Courts generally have applied a multi-step analysis that requires plaintiffs to establish both the existence of severe or pervasive sexual harassment as well as additional aggravating factors warranting an employee's resignation. The courts, however, have had a difficult time in defining the contours of the separate harassment and constructive discharge tests. The Supreme Court has weighed in on several occasions, but rather than opt for clarity, the Court has created new tests and new terminology that have compounded the confusion. The recent Pennsylvania State Police v. Suders decision is a case in point. In that 2004 decision, the Court ruled that an employer is strictly liable for harassment that results from a supervisor's official act, but is subject to liability for other types of supervisor harassment only if employer negligence is established. The Court's use of the "official action" and "constructive discharge" concepts in that case sets an unpredictable course and fails to correct the unfairness of the current multi-tiered analytical framework.
Stephen F. Befort and Sarah J. Gorajski, When Quitting Is Fitting: The Need for a Reformulated Sexual Harassment/Constructive Discharge Standard in the Wake of Pennsylvania State Police v. Suders, 67 Ohio St. L.J. 593 (2006), available at http://scholarship.law.umn.edu/faculty_articles/33.