OPINION OF THE COURT PENNSYLVANIA STATE POLICE V. SUDERS 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-95 PENNSYLVANIA STATE POLICE, PETITIONER v. NANCY DREW SUDERS

															on writ of certiorari to the united states court of
appeals for the third circuit

															[June 14, 2004]

															   Justice Ginsburg delivered the
opinion of the Court.

															   Plaintiff-respondent Nancy Drew
Suders alleged sexually harassing conduct by her supervisors,
officers of the Pennsylvania State Police (PSP), of such severity
she was forced to resign. The question presented concerns the proof
burdens parties bear when a sexual harassment/constructive
discharge claim of that character is asserted under Title VII of
the Civil Rights Act of 1964.

															   To establish hostile work environment,
plaintiffs like Suders must show harassing behavior “sufficiently
severe or pervasive to alter the conditions of [their] employment.” Meritor Savings Bank, FSB v. Vinson, 477
U. S. 57 , 67 (1986) (internal quotation marks omitted); see Harris v. Forklift Systems, Inc., 510 U. S. 17 , 22 (1993)
(“[T]he very fact that the discriminatory conduct was so severe or
pervasive that it created a work environment abusive to employees
because of their … gender … offends Title VII’s broad rule of
workplace equality.”). Beyond that, we hold, to establish
“constructive discharge,” the plaintiff must make a further
showing: She must show that the abusive working environment became
so intolerable that her resignation qualified as a fitting
response. An employer may defend against such a claim by showing
both (1) that it had installed a readily accessible and effective
policy for reporting and resolving complaints of sexual harassment,
and (2) that the plaintiff unreasonably failed to avail herself of
that employer-provided preventive or remedial apparatus. This
affirmative defense will not be available to the employer, however,
if the plaintiff quits in reasonable response to an
employer-sanctioned adverse action officially changing her
employment status or situation, for example, a humiliating
demotion, extreme cut in pay, or transfer to a position in which
she would face unbearable working conditions. In so ruling today,
we follow the path marked by our 1998 decisions in Burlington
Industries, Inc. v. Ellerth , 524
U. S. 742 , and Faragher v. Boca
Raton, 524
U. S. 775 .

															I

															   Because this case was decided
against Suders in the District Court on the PSP’s motion for
summary judgment, we recite the facts, as summarized by the Court
of Appeals, in the light most favorable to Suders.[ Footnote 1 ] In March 1998, the PSP hired
Suders as a police communica- tions operator for the McConnellsburg
barracks. Suders v. Easton , 325 F. 3d 432,
436 (CA3 2003). Suders’ supervisors were Sergeant Eric D. Easton,
Station Commander at the McConnellsburg barracks, Patrol Corporal
William D. Baker, and Corporal Eric B. Prendergast. Ibid .
Those three supervisors subjected Suders to a continuous barrage of
sexual harassment that ceased only when she resigned from the
force. Ibid .

															   Easton “would bring up [the
subject of] people having sex with animals” each time Suders
entered his office. Ibid . (internal quotation marks
omitted).    He told Prendergast, in front of
Suders, that young girls should be given instruction in how to
gratify men with oral sex. Ibid . Easton also would sit
down near Suders, wearing spandex shorts, and spread his legs
apart. Ibid . Apparently imitating a move popularized by
television wrestling, Baker repeatedly made an obscene gesture in
Suders’ presence by grabbing his genitals and shouting out a vulgar
comment inviting oral sex. Id ., at 437. Baker made this
gesture as many as five-to-ten times per night throughout Suders’
employment at the barracks. Ibid . Suders once told Baker
she “ ‘d[id]n’t think [he] should be doing this’ ”; Baker
responded by jumping on a chair and again performing the gesture,
with the accompanying vulgarity. Ibid . Further, Baker
would “rub his rear end in front of her and remark ‘I have a nice
ass, don’t I?’ ” Ibid . Prendergast told Suders
“ ‘the village idiot could do her job’ ”; wearing black
gloves, he would pound on furniture to intimidate her. Ibid .[ Footnote 2 ]

															   In June 1998, Prendergast accused Suders of
taking a missing accident file home with her. Id ., at 438.
After that incident, Suders approached the PSP’s Equal Employment
Opportunity Officer, Virginia Smith-Elliott, and told her she
“might need some help.” Ibid . Smith-Elliott gave Suders
her telephone number, but neither woman followed up on the
conversation. Ibid . On August 18, 1998, Suders contacted
Smith-Elliott again, this time stating that she was being harassed
and was afraid. Ibid . Smith-Elliott told Suders to file a
complaint, but did not tell her how to obtain the necessary form.
Smith-Elliott’s response and the manner in which it was conveyed
appeared to Suders insensitive and unhelpful. Ibid .

															   Two days later, Suders’ supervisors arrested
her for theft, and Suders resigned from the force. The theft arrest
occurred in the following circumstances. Suders had several times
taken a computer-skills exam to satisfy a PSP job requirement. Id ., at 438–439. Each time, Suders’ supervisors told her
that she had failed. Id ., at 439. Suders one day came upon
her exams in a set of drawers in the women’s locker room. She
concluded that her supervisors had never forwarded the tests for
grading and that their reports of her failures were false. Ibid . Regarding the tests as her property, Suders removed
them from the locker room. Ibid.; App. 11, 119–120. Upon
finding that the exams had been removed, Suders’ supervisors
devised a plan to arrest her for theft. 325 F. 3d, at 438–439.
The officers dusted the drawer in which the exams had been stored
with a theft-detection powder that turns hands blue when touched. Id ., at 439. As anticipated by Easton, Baker, and
Prendergast, Suders attempted to return the tests to the drawer,
whereupon her hands turned telltale blue. Ibid . The
supervisors then apprehended and handcuffed her, photographed her
blue hands, and commenced to question her. Ibid . Suders
had previously prepared a written resignation, which she tendered
soon after the supervisors detained her. Ibid .
Nevertheless, the supervisors initially refused to release her.
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. Ibid . Suders reiterated
that she wanted to resign, and Easton then let her leave. Ibid . The PSP never brought theft charges against her.

															   In September 2000, Suders sued the PSP in
Federal District Court, alleging, inter alia , that she had
been subjected to sexual harassment and constructively discharged,
in violation of Title VII of the Civil Rights Act of 1964, 78 Stat.
253, 42 U. S. C. §2000e et seq . App. 1,
12–13.[ Footnote 3 ] At the close
of discovery, the District Court granted the PSP’s motion for
summary judgment. Suders’ testimony, the District Court recognized,
sufficed to permit a trier of fact to conclude that the supervisors
had created a hostile work environment. App. to Pet. for Cert. 76a.
The court nevertheless held that the PSP was not vicariously liable
for the supervisors’ conduct. Id ., at 80a.

															   In so concluding, the District Court referred
to our 1998 decision in Faragher v. Boca
Raton, 524
U. S. 775 . See App. to Pet. for Cert. 77a–78a. In Faragher , along with Burlington Industries, Inc. v. Ellerth , 524
U. S. 742 , decided the same day, the Court distinguished
between supervisor harassment unaccompanied by an adverse official
act and supervisor harassment attended by “a tangible employment
action.” Id., at 765; accord Faragher , 524 U. S.,
at 808. Both decisions hold that an employer is strictly liable for
supervisor harassment that “culminates in a tangible employment
action, such as discharge, demotion, or undesirable reassignment.” Ellerth , 524 U. S., at 765; accord Faragher , 524
U. S., at 808. But when no tangible employment action is taken,
both decisions also hold, the employer may raise an affirmative
defense to liability, subject to proof by a preponderance of the
evidence: “The defense comprises two necessary elements: (a) that
the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or
to avoid harm otherwise.” Ellerth , 524 U. S., at 765;
accord Faragher , 524 U. S., at 807.

															   Suders’ hostile work environment claim was
untenable as a matter of law, the District Court stated, because
she “unreasonably failed to avail herself of the PSP’s internal
procedures for reporting any harassment.” App. to Pet. for Cert.
80a. Resigning just two days after she first mentioned anything
about harassment to Equal Employment Opportunity Officer
Smith-Elliott, the court noted, Suders had “never given [the PSP]
the opportunity to respond to [her] complaints.” Ibid . The
District Court did not address Suders’ constructive discharge
claim.[ Footnote 4 ]

															   The Court of Appeals for the Third Circuit
reversed and remanded the case for disposition on the merits. 325
F. 3d, at 462. The Third Circuit agreed with the District
Court that Suders had presented evidence sufficient for a trier of
fact to conclude that the supervisors had engaged in a “pattern of
sexual harassment that was pervasive and regular.” Id ., at
442. But the appeals court disagreed with the District Court in two
fundamental respects. First, the Court of Appeals held that, even
assuming the PSP could assert the affirmative defense described in Ellerth and Faragher , genuine issues of material
fact existed concerning the effectiveness of the PSP’s “program …
to address sexual harassment claims.” 325 F. 3d, at 443.
Second, the appeals court 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. Ibid .[ Footnote 5 ]

															   A plaintiff alleging constructive discharge in
violation of Title VII, the Court of Appeals stated, must
establish:

															“(1) he or she suffered harassment or
discrimination so intolerable that a reasonable person in the same
position would have felt compelled to resign … ; and (2) the
employee’s reaction to the workplace situation—that is, his or her
decision to resign—was reasonable given the totality of
circumstances … .” Id ., at 445.

															Viewing the complaint in that context, the court
determined that Suders had raised genuine issues of material fact
relating to her claim of constructive discharge. Id ., at
446.

															   The Court of Appeals then made the ruling
challenged here: It held that “a constructive discharge, when
proved, constitutes a tangible employment action.” Id ., at
447. Under Ellerth and Faragher , the court
observed, such an action renders an employer strictly liable and
precludes employer recourse to the affirmative defense announced in
those decisions. 325 F. 3d, at 447. The Third Circuit
recognized that the Courts of Appeals for the Second and Sixth
Circuits had ruled otherwise. A constructive discharge resulting
from a supervisor-created hostile work environment, both Circuits
had held, does not qualify as a tangible employment action, and
therefore does not stop an employer from invoking the Ellerth/Faragher affirmative defense. 325 F. 3d, at
452–453 (citing Caridad v. Metro-North Commuter
R. Co. , 191 F. 3d 283, 294 (CA2 1999), and Turner v. Dowbrands, Inc ., No. 99–3984, 2000 WL
924599, *1 (CA6, June 26, 2000) (unpublished)). The Third Circuit,
however, reasoned that a constructive discharge “ ‘constitutes
a significant change in employment status’ by ending the
employer-employee relationship” and “also inflicts the same type of
‘direct economic harm’ ” as the tangible employment actions Ellerth and Faragher offered by way of example
(discharge, demotion, undesirable reassignment). 325 F. 3d, at
460 (quoting Ellerth , 524 U. S., at 761, 762). Satisfied
that Suders had “raised genuine issues of material fact as to her
claim of constructive discharge,” and that the PSP was “precluded
from asserting the affirmative defense to liability advanced in
support of its motion for summary judgment,” the Court of Appeals
remanded Suders’ Title VII claim for trial. 325 F. 3d, at
461.

															   This Court granted certiorari, 540 U. S. 1046 (2003),
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 and therefore
precludes assertion of the affirmative defense articulated in Ellerth and Faragher . Compare 325 F. 3d, at
461 (constructive discharge qualifies as a tangible employment
action); Jaros v. LodgeNet Entertainment Corp. ,
294 F. 3d 960, 966 (CA8 2002) (same), with Caridad ,
191 F. 3d, at 294 (constructive discharge does not qualify as
a tangible employment action); Turner , 2000 WL 924599, *1
(same), and Reed v. MBNA Marketing Systems, Inc. ,
333 F. 3d 27, 33 (CA1 2003) (constructive discharge qualifies
as a tangible employment action only when effected through a
supervisor’s official act); Robinson v. Sappington , 351 F. 3d 317, 336 (CA7 2003) (same). We
conclude that an employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor’s
official act precipitates the constructive discharge; absent such a
“tangible employment action,” however, the defense is available to
the employer whose supervisors are charged with harassment. We
therefore vacate the Third Circuit’s judgment and remand the case
for further proceedings.

															II

															A

															   Under the constructive discharge
doctrine, an employee’s reasonable decision to resign because of
unendurable working conditions is assimilated to a formal discharge
for remedial purposes. See 1 B. Lindemann & P. Grossman,
Employment Discrimination Law 838–839 (3d ed. 1996) (hereinafter
Lindemann & Grossman). The inquiry is objective: Did working
conditions become so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign? See C.
Weirich et al., 2002 Cumulative Supplement to Lindemann &
Grossman 651–652, and n. 1 (collecting cases) (hereinafter
Weirich).

															   The constructive discharge
concept originated in the labor-law field in the 1930’s; the
National Labor Relations Board (NLRB) developed the doctrine to
address situations in which employers coerced employees to resign,
often by creating intolerable working conditions, in retaliation
for employees’ engagement in collective activities. Lieb,
Constructive Discharge Under Section 8(a)(3) of the National Labor
Relations Act: A Study in Undue Concern Over Motives, 7 Indus. Rel.
L. J. 143, 146–148 (1985); see In re Sterling Corset
Co. , 9 N. L. R. B. 858, 865 (1938) (first case
to use term “constructive discharg[e]”). Over the next two decades,
Courts of Appeals sustained NLRB constructive discharge rulings.
See, e.g. , NLRB v. East Texas Motor Freight
Lines , 140 F. 2d 404, 405 (CA5 1944) (first Circuit case
to hold supervisor-caused resignation an unfair labor practice); NLRB v. Saxe-Glassman Shoe Corp ., 201 F. 2d
238, 243 (CA1 1953) (first Circuit case to allow backpay award for
constructive discharge). By 1964, the year Title VII was enacted,
the doctrine was solidly established in the federal courts. See
Comment, That’s It, I Quit: Returning to First Principles in
Constructive Discharge Doctrine, 23 Berkeley J. Emp. & Lab. L.
401, 410 (2002).

															   The Courts of Appeals have recognized
constructive discharge claims in a wide range of Title VII cases.
See, e.g. , Robinson , 351 F. 3d, at 336–337
(sexual harassment); Moore v. KUKA Welding Systems
& Robot Corp. , 171 F. 3d 1073, 1080 (CA6 1999)
(race); Bergstrom-Ek v. Best Oil Co. , 153
F. 3d 851, 858–859 (CA8 1998) (pregnancy); Amirmokri v. Baltimore Gas & Elec. Co. , 60 F. 3d 1126,
1132–1133 (CA4 1995) (national origin); Derr v. Gulf
Oil Corp. , 796 F. 2d 340, 343 (CA10 1986) (sex); Young v. Southwestern Sav. & Loan Assn. , 509
F. 2d 140, 143–144 (CA5 1975) (religion). See also Goss v. Exxon Office Systems Co. , 747 F. 2d
885, 887 (CA3 1984) (“[A]pplication of the constructive discharge
doctrine to Title VII cases has received apparently universal
recognition among the courts of appeals which have addressed that
issue.”); 3 L. Larson, Labor and Employment Law §59.05[8] (2003)
(collecting cases). And the Equal Employment Opportunity Commission
(EEOC), the federal agency charged with implementing Title VII, has
stated: An employer “is responsible for a constructive discharge in
the same manner that it is responsible for the outright
discriminatory discharge of a charging party.” EEOC Compliance
Manual 612:0006 (2002).

															   Although this Court has not had occasion
earlier to hold that a claim for constructive discharge lies under
Title VII, we have recognized constructive discharge in the
labor-law context, see Sure&nbhyph;Tan, Inc. v. NLRB, 467 U. S. 883 , 894
(1984) (NLRB may find employer engaged in unfair labor practice
“when, for the purpose of discouraging union activity, … [the
employer] creates working conditions so intolerable that the
employee has no option but to resign—a so-called ‘constructive
discharge.’ ”). Furthermore, we have stated that “Title VII is
violated by either explicit or constructive alterations in the
terms or conditions of employment.” Ellerth , 524 U. S., at
752. See also Meritor Savings Bank, FSB v. Vinson, 477 U. S., at 64 (“The phrase ‘terms, conditions,
or privileges of employment’ [in Title VII] evinces a congressional
intent to strike at the entire spectrum of disparate treatment of
men and women in employment.” (some internal quotation marks
omitted)). We agree with the lower courts and the EEOC that Title
VII encompasses employer liability for a constructive
discharge.

															B

															   This case concerns an employer’s
liability for one subset of Title VII constructive discharge
claims: constructive discharge resulting from sexual harassment, or
“hostile work environment,” attributable to a supervisor. Our
starting point is the framework Ellerth and Faragher established to govern employer liability for
sexual harassment by supervisors.[ Footnote 6 ] As earlier noted, see supra , at 5–6,
those decisions delineate two categories of hostile work
environment claims: (1) harassment that “culminates in a tangible
employment action,” for which employers are strictly liable, Ellerth , 524 U. S., at 765; accord Faragher , 524
U. S., at 808, and (2) harassment that takes place in the absence
of a tangible employment action, to which employers may assert an
affirmative defense, Ellerth , 524 U. S., at 765; accord Faragher , 524 U. S., at 807. With the background set out
above in mind, we turn to the key issues here at stake: Into which Ellerth/Faragher category do hostile-environment
constructive discharge claims fall—and what proof burdens do the
parties bear in such cases.

															   In Ellerth and Faragher , the plaintiffs-employees sought to hold their
employers vicariously liable for sexual harassment by their
supervisors, even though the plaintiffs “suffer[ed] no adverse,
tangible job consequences.” Ellerth , 524 U. S., at 747.
Setting out a framework for employer liability in those decisions,
this Court noted that Title VII’s definition of “employer” includes
the employer’s “agent[s],” 42 U. S. C. §2000e(b). See Ellerth , 524 U. S., at 754. We viewed that definition as a
direction to “interpret Title VII based on agency principles.” Ibid. The Restatement (Second) of Agency (1957)
(hereinafter Restatement), the Court noted, states (in its
black-letter formulation) 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.’ ” Ellerth , 524 U. S., at 758 (quoting Restatement
§219(2)(d)); accord Faragher , 524 U. S., at 801.

															   We then identified “a class of cases where,
beyond question, more than the mere existence of the employment
relation aids in commission of the harassment: when a supervisor
takes a tangible employment action against the subordinate.” Ellerth , 524 U. S., at 760. A tangible employment action,
the Court explained, “constitutes a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Id .,
at 761. Unlike injuries that could equally be inflicted by a
co-worker, we stated, tangible employment actions “fall within the
special province of the supervisor,” who “has been empowered by the
company as … [an] agent to make economic decisions affecting other
employees under his or her control.” Id ., at 762. The
tangible employment action, the Court elaborated, is, in essential
character, “an official act of the enterprise, a company act.” Ibid . It is “the means by which the supervisor brings the
official power of the enterprise to bear on subordinates.” Ibid . Often, the supervisor will “use [the company’s]
internal processes” and thereby “obtain the imprimatur of the
enterprise.” Ibid . Ordinarily, the tangible employment
decision “is documented in official company records, and may be
subject to review by higher level supervisors.” Ibid . In
sum, we stated, “when a supervisor takes a tangible employment
action against a subordinate[,] … it would be implausible to
interpret agency principles to allow an employer to escape
liability.” Id ., at 762–763.

															   When a supervisor’s harassment of a
subordinate does not culminate in a tangible employment action, the
Court next explained, it is “less obvious” that the agency relation
is the driving force. Id ., at 763. We acknowledged that a
supervisor’s “power and authority invests his or her harassing
conduct with a particular threatening character, and in this sense,
a supervisor always is aided by the agency relation.” Ibid . But we also recognized that “there are acts of
harassment a supervisor might commit which might be the same acts a
coemployee would commit, and there may be some circumstances where
the supervisor’s status [would] mak[e] little difference.” Ibid .

															   An “aided-by-the-agency-relation” standard,
the Court suggested, was insufficiently developed to press into
service as the standard governing cases in which no tangible
employment action is in the picture. Looking elsewhere for
guidance, we focused on Title VII’s design “to encourage the
creation of antiharassment policies and effective grievance
mechanisms.” Id ., at 764. The Court reasoned that tying
the liability standard to an employer’s effort to install effective
grievance procedures would advance Congress’ purpose “to promote
conciliation rather than litigation” of Title VII controversies. Ibid . At the same time, such linkage of liability
limitation to effective preventive and corrective measures could
serve Title VII’s deterrent purpose by “encourag[ing] employees to
report harassing conduct before it becomes severe or pervasive.” Ibid . Accordingly, we held that when no tangible
employment action is taken, the employer may defeat vicarious
liability for supervisor harassment by establishing, as an
affirmative defense, both that “the employer 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.” Id .,
at 765; accord Faragher , 524 U. S., at 807. Ellerth and Faragher also
clarified the parties’ respective proof burdens in hostile
environment cases. Title VII, the Court noted, “borrows from tort
law the avoidable consequences doctrine,” Ellerth , 524 U.
S., at 764, under which victims have “a duty ‘to use such means as
are reasonable under the circumstances to avoid or minimize the
damages’ that result from violations of the statute,” Faragher , 524 U. S., at 806 (quoting Ford Motor
Co. v. EEOC, 458 U. S. 219 , 231, n.
15 (1982)). The Ellerth/Faragher affirmative defense
accommodates that doctrine by requiring plaintiffs reasonably to
stave off avoidable harm. But both decisions place the burden
squarely on the defendant to prove that the plaintiff unreasonably
failed to avoid or reduce harm. Ellerth , 524 U. S., at
765; accord Faragher , 524 U. S., at 807; cf. C. McCormick,
Law of Damages 130 (1935) (defendant has burden of persuading
factfinder “plaintiff could reasonably have reduced his loss or
avoided injurious consequences”).[ Footnote 7 ]

															1

															   The constructive discharge here
at issue stems from, and can be regarded as an aggravated case of,
sexual harassment or hostile work environment. For an atmosphere of
sexual harassment or hostility to be actionable, we reiterate, see supra , at 1, the offending behavior “must be sufficiently
severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Meritor, 477 U. S., at 67 (internal quotation marks and
brackets omitted). A hostile-environment constructive discharge
claim entails something more: A plaintiff who advances such a
compound claim must show working conditions so intolerable that a
reasonable person would have felt compelled to resign. See, e.g., Breeding v. Arthur J. Gallagher &
Co. , 164 F. 3d 1151, 1160 (CA8 1999) (“[A]lthough there
may be evidence from which a jury could find sexual harassment, …
the facts alleged [for constructive discharge must be] … so
intolerable that a reasonable person would be forced to quit.”); Perry v. Harris Chernin, Inc. , 126
F. 3d 1010, 1015 (CA7 1997) (“[U]nless conditions are beyond
‘ordinary’ discrimination, a complaining employee is expected to
remain on the job while seeking redress.”).[ Footnote 8 ]

															   Suders’ claim is of the same
genre as the hostile work environment claims the Court analyzed in Ellerth and Faragher .[ Footnote 9 ] Essentially, Suders presents a “worse case”
harassment scenario, harassment ratcheted up to the breaking point.
Like the harassment considered in our pathmarking decisions,
harassment so intolerable as to cause a resignation may be effected
through co-worker conduct, unofficial supervisory conduct, or
official company acts. Unlike an actual termination, which is always effected through an official act of the company, a
constructive discharge need not be. A constructive discharge
involves both an employee’s decision to leave and precipitating
conduct: The former involves no official action; the latter, like a
harassment claim without any constructive discharge assertion, may
or may not involve official action. See Brief for United States as Amicus Curiae 24.

															   To be sure, a constructive discharge is
functionally the same as an actual termination in damages-enhancing
respects. See supra , at 16, n. 8. As the Third
Circuit observed, both “en[d] the employer-employee relationship,”
and both “inflic[t] … direct economic harm.” 325 F. 3d, at 460
(internal quotation marks omitted). But when an official act does
not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold, calls for extension of
the affirmative defense to the employer. As those leading decisions
indicate, official directions and declarations are the acts most
likely to be brought home to the employer, the measures over which
the employer can exercise greatest control. See Ellerth ,
524 U. S., at 762. Absent “an official act of the enterprise,” ibid ., as the last straw, the employer ordinarily would
have no particular reason to suspect that a resignation is not the
typical kind daily occurring in the work force. And as Ellerth and Faragher further point out, an
official act reflected in company records—a demotion or a reduction
in compensation, for example—shows “beyond question” that the
supervisor has used his managerial or controlling position to the
employee’s disadvantage. See Ellerth , 524 U. S., at 760.
Absent such an official act, the extent to which the supervisor’s
misconduct has been aided by the agency relation, as we earlier
recounted, see supra , at 13, is less certain. That
uncertainty, our precedent establishes, see supra , at
13–14, justifies affording the employer the chance to establish,
through the Ellerth/Faragher affirmative defense, that it
should not be held vicariously liable. The Third Circuit drew the line
differently. Under its formulation, the affirmative defense would
be eliminated in all hostile-environment constructive discharge
cases, but retained, as Ellerth and Faragher require, in “ordinary” hostile work environment cases, i.e. , cases involving no tangible employment action. That
placement of the line, anomalously, would make the graver claim of hostile-environment constructive discharge easier to prove than its lesser included component, hostile work
environment. Moreover, the Third Circuit’s formulation, that court
itself recognized, would make matters complex, indeed, more than a
little confusing to jurors. Creation of a hostile work environment
is a necessary predicate to a hostile-environment constructive
discharge case. Juries would be so informed. Under the Third
Circuit’s decision, a jury, presumably, would be cautioned to
consider the affirmative-defense evidence only in reaching a
decision on the hostile work environment claim, and to ignore or at
least downplay that same evidence in deciding the closely
associated constructive discharge claim. It makes scant sense thus
to alter the decisive instructions from one claim to the next when
the only variation between the two claims is the severity of the
hostile working conditions. Cf. Faragher , 524 U. S., at
801 (affirming “the virtue of categorical clarity”). We note, finally, two recent Court
of Appeals decisions that indicate how the “official act” (or
“tangible employment action”) criterion should play out when
constructive discharge is alleged. Both decisions advance the
untangled approach we approve in this opinion. In Reed v. MBNA Marketing Systems, Inc. , 333 F. 3d 27 (CA1
2003), the plaintiff claimed a constructive discharge based on her
supervisor’s repeated sexual comments and an incident in which he
sexually assaulted her. The First Circuit held that the alleged
wrongdoing did not preclude the employer from asserting the Ellerth/Faragher affirmative defense. As the court
explained in Reed , the supervisor’s behavior involved no
official actions. Unlike, “ e.g. , an extremely dangerous
job assignment to retaliate for spurned advances,” 333 F. 3d,
at 33, the supervisor’s conduct in Reed “was exceedingly
unofficial and involved no direct exercise of company authority”;
indeed, it was “exactly the kind of wholly unauthorized conduct for
which the affirmative defense was designed,” ibid . In
contrast, in Robinson v. Sappington , 351
F. 3d 317 (CA7 2003), after the plaintiff complained that she
was sexually harassed by the judge for whom she worked, the
presiding judge decided to transfer her to another judge, but told
her that “her first six months [in the new post] probably would be
‘hell,’ ” and that it was in her “ ‘best interest to
resign.’ ” Id ., at 324. The Seventh Circuit held that
the employer was precluded from asserting the affirmative defense
to the plaintiff’s constructive discharge claim. The Robinson plaintiff’s decision to resign, the court
explained, “resulted, at least in part, from [the presiding
judge’s] official actio[n] in transferring” her to a judge who
resisted placing her on his staff. Id ., at 337. The courts
in Reed and Robinson properly recognized that Ellerth and Faragher , which divided the universe
of supervisor-harassment claims according to the presence or
absence of an official act, mark the path constructive discharge
claims based on harassing conduct must follow. 2 In its summation, the
Third Circuit qualified its holding that a constructive discharge
itself “constitutes a tangible employment action within the meaning
of Ellerth and Faragher .” 325 F. 3d, at 462.
The affirmative defense Ellerth and Faragher delineated, the court said, might be imported into the anterior
issue whether “the employee’s decision to resign was reasonable
under the circumstances.” 325 F. 3d, at 462.[ Footnote 10 ] As the Third Circuit
expressed its thinking: “[I]t may be relevant to a claim of
constructive discharge whether an employer had an effective
remedial scheme in place, whether an employer attempted to
investigate, or otherwise to address, plaintiff’s complaints, and
whether plaintiff took advantage of alternatives offered by
antiharassment programs.” Ibid . These considerations, the Third Circuit
recognized, “are, of course, the same considerations relevant to
the affirmative defense in Ellerth and Faragher .” Ibid . The Third Circuit left open when
and how the Ellerth/Faragher considerations would be
brought home to the fact trier. It did not address specifically the
allocation of pleading and persuasion burdens. It simply relied on
“the wisdom and expertise of trial judges to exercise their
gatekeeping authority when assessing whether all, some, or none of
the evidence relating to employers’ antiharassment programs and to
employees’ exploration of alternative avenues warrants introduction
at trial.” 325 F. 3d, at 463. We see no cause for leaving the
district courts thus unguided. Following Ellerth and Faragher , the plaintiff who alleges no tangible employment
action has the duty to mitigate harm, but the defendant bears the
burden to allege and prove that the plaintiff failed in that
regard. See supra , at 14–15. The plaintiff might elect to
allege facts relevant to mitigation in her pleading or to present
those facts in her case in chief, but she would do so in
anticipation of the employer’s affirmative defense, not as a legal
requirement. * * * We agree with the
Third Circuit that the case, in its current posture, presents
genuine issues of material fact concerning Suders’ hostile work
environment and constructive discharge claims.[ Footnote 11 ] We hold, however, that the Court
of Appeals erred in declaring the affirmative defense described in Ellerth and Faragher never available in
constructive discharge cases. Accordingly, we vacate the Third
Circuit’s judgment and remand the case for further proceedings
consistent with this opinion. It is so ordered. Footnote 1 The PSP, we note, “vigorously
dispute[s]” the truth of Suders’ allegations, contending that some
of the incidents she describes “never happened at all,” while
“others took place in a context quite different from that suggested
by [Suders].” Brief for Petitioner 4, n. 3. Footnote 2 In addition, the supervisors made
derogatory remarks about Suders’ age, e.g. , stating
“ ‘a 25-year-old could catch on faster’ ” than she could,
325 F. 3d, at 436, and calling her “ ‘momma,’ ” id ., at 437. They further harassed her for having
political influence. Ibid . Suders’ age and
political-affiliation discrimination claims are not before
us. Footnote 3 Suders raised several other
claims that are not at issue here, including claims under the Age
Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, 29
U. S. C. §621 et seq ., and the Pennsylvania Human
Relations Act (PHRA), Pa. Stat. Ann., Tit. 43, §951 et
seq . (Purdon 1991). App. 7. She also asserted claims against
Easton, Baker, Prendergast, and Smith-Elliott in their individual
capacities under Title VII, the ADEA, and the PHRA. App. to Pet.
for Cert. 70a–73a. Footnote 4 The District Court disposed of
all other claims in the PSP’s favor. The court granted the PSP
summary judgment on Suders’ Title VII retaliation claim, observing
that Suders did not engage in any protected activity, e.g. , she did not file a discrimination claim, prior to
her resignation. Id ., at 80a–81a. It dismissed Suders’
ADEA and PHRA claims against the PSP on sovereign immunity grounds, id ., at 72a–73a, and her Title VII and ADEA claims against
the individual defendants on the ground that those statutes do not
provide for individual liability, id ., at 70a–72a. The
court also dismissed the PHRA claims against the individual
defendants because Suders had failed to respond to the defendants’
assertions of immunity. Id ., at 73a–74a. Suders did not
raise any of the above claims on appeal. See Brief for Appellant in
No. 01–3512 (CA3), p. 2; Brief for Appellees in No. 01–3512,
p. 4. Footnote 5 Although Suders’ complaint did
not expressly mention constructive discharge, the Third Circuit
found “[t]he allegations of constructive discharge … apparent on
the face of Suders’s [pleading].” 325 F. 3d, at 443; see ibid . (“In the very first paragraph, Suders alleged that
she was ‘forced to suffer a termination of employment because she
would not yield to sexual suggestions [and] innuendoes
… .’ ” (quoting Introductory Statement to Suders’
complaint, reprinted in this Court at App. 6)). Footnote 6 Ellerth and Faragher expressed no view on the employer liability
standard for co-worker harassment. Nor do we. Footnote 7 The employer is in the best
position to know what remedial procedures it offers to employees
and how those procedures operate. See 9 J. Wigmore, Evidence §2486,
p. 290 (J. Chadbourn rev. ed. 1981) (“[T]he burden of proving a
fact is said to be put on the party who presumably has peculiar
means of knowledge enabling him to prove its falsity if it is
false.” (emphasis deleted)). Footnote 8 As earlier noted, see supra , at 9, a prevailing constructive discharge plaintiff
is entitled to all damages available for formal discharge. The
plaintiff may recover postresignation damages, including both
backpay and, in fitting circumstances, frontpay, see 1 Lindemann
& Grossman 838; Weirich 651, as well as the compensatory and
punitive damages now provided for Title VII claims generally, see
42 U. S. C. §1981a(a)(1); Pollard v. E. I.
du Pont de Nemours & Co., 532 U. S. 843 , 848
(2001) (noting expanded remedies under Civil Rights Act of
1991). Footnote 9 Both the Ellerth and Faragher plaintiffs resigned from their posts; plaintiff
Ellerth expressly alleged constructive discharge. See Burlington Industries, Inc. v. Ellerth , 524
U. S. 742 , 748–749 (1998); Faragher v. Boca
Raton, 524
U. S. 775 , 783 (1998). Although Ellerth’s constructive
discharge claim was not before this Court, the decision’s omission
of constructive discharge from its examples of tangible employment
actions is conspicuous. See 524 U. S., at 761; Brief for Chamber of
Commerce of the United States as Amicus Curiae 10 (“[T]his
Court’s omission of constructive discharge in its discussion of
tangible employment actions was widely regarded as a purposeful
one.”). Tellingly, we stated that Ellerth “ha[d] not alleged she
suffered a tangible employment action,” despite the fact that her
complaint alleged constructive discharge. 524 U. S., at
766. Footnote
10 For similar expressions, see, e.g., Jaros v. LodgeNet Entertainment
Corp. , 294 F. 3d 960, 965 (CA8 2002) (though not entitled
to the Ellerth/Faragher affirmative defense, employer
facing constructive discharge complaint may assert that plaintiff
“did not give it a chance to respond to her [grievance]” in
rebutting plaintiff’s contention that conditions were so
intolerable as to force her resignation); Marrero v. Goya of Puerto Rico, Inc. , 304 F. 3d 7, 28 (CA1 2002)
(“the jury reasonably can take into account how the employer
responded to the plaintiff’s complaints, if any” in deciding
whether conditions were intolerable); Hartman v. Sterling, Inc. , No. Civ. A. 01–CV–2630, 2003 WL 22358548,
*13 (ED Pa., Sept. 10, 2003) (noting “it is relevant,” but not
dispositive, whether plaintiff complained); Brief for Lawyers’
Committee for Civil Rights Under Law et al. as Amici
Curiae 19 (affirmative defense unnecessary because of “the
overlap between elements of constructive discharge and of the Faragher/Ellerth [affirmative] defense”). Footnote
11 Although most of the
discriminatory behavior Suders alleged involved unofficial conduct,
the events surrounding her computer-skills exams, see supra , at 4, were less obviously unofficial. THOMAS, J., DISSENTING PENNSYLVANIA STATE POLICE V. SUDERS 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-95 PENNSYLVANIA STATE POLICE, PETITIONER v. NANCY DREW SUDERS

															on writ of certiorari to the united states court of
appeals for the third circuit

															[June 14, 2004]

															   Justice Thomas, dissenting.

															   As the Court explains, the
National Labor Relations Board (NLRB) developed the concept of
constructive discharge to address situations in which employers
coerced employees into resigning because of the employees’
involvement in union activities. See ante , at 9–10. In
light of this specific focus, the NLRB requires employees to
establish two elements to prove a constructive discharge. First,
the employer must impose burdens upon the employee that “cause, and
[are] intended to cause, a change in his working conditions so
difficult or unpleasant as to force him to resign. Second, it must
be shown that those burdens were imposed because of the employee’s
union activities.” Crystal Princeton Refining Co. , 222
N. L. R. B. 1068, 1069 (1976).

															   When the constructive discharge concept was
first imported into Title VII of the Civil Rights Act of 1964, some
courts imposed similar requirements. See, e.g., Muller v. United States Steel Corp. , 509
F. 2d 923, 929 (CA10 1975) (requiring a showing that “an
employer deliberately render[ed] the employee’s working conditions
intolerable and thus force[d] him to quit his job”). Moreover,
because the Court had not yet recognized the hostile work
environment cause of action, the first successful Title VII
constructive discharge claims typically involved adverse employment
actions. See, Muller , supra (denial of job
promotion); Derr v. Gulf Oil Corp. , 796
F. 2d 340, 344 (CA10 1986) (demotion). If, in order to
establish a constructive discharge, an employee must prove that his
employer subjected him to an adverse employment action with the
specific intent of forcing the employee to quit, it makes sense to
attach the same legal consequences to a constructive discharge as
to an actual discharge.

															   The Court has now adopted a definition of
constructive discharge, however, that does not in the least
resemble actual discharge. The Court holds that to establish
“constructive discharge,” a plaintiff must “show that the abusive
working environment became so intolerable that [the employee’s]
resignation qualified as a fitting response.” Ante , at 1.
Under this rule, it is possible to allege a constructive discharge
absent any adverse employment action. Moreover, a majority of
Courts of Appeals have declined to impose a specific intent or
reasonable foreseeability requirement. See, e.g., Brooks v. City of San Mateo , 229 F. 3d 917,
930 (CA9 2000) (“[C]onstructive discharge occurs when the working
conditions deteriorate, as a result of discrimination, to the point
that they become sufficiently extraordinary and egregious to
overcome the normal motivation of a competent, diligent, and
reasonable employee to remain on the job to earn a livelihood and
to serve his or her employer” (internal quotation marks and
citation omitted)).

															   Thus, as it is currently conceived, a
“constructive” discharge does not require a “company act[] that can
be performed only by the exercise of specific authority granted by
the employer,” Burlington Industries, Inc. v. Ellerth , 524 U. S. 742 , 768
(1998) (Thomas, J., dissenting) ( i.e., an adverse
employment action), nor does it require that the act be undertaken
with the same purpose as an actual discharge. Under these
circumstances, it no longer makes sense to view a constructive
discharge as equivalent to an actual discharge. Instead, as the
Court points out, a constructive discharge is more akin to “an
aggravated case of … sexual harassment or hostile work
environment.” Ante , at 15. And under this “hostile work
environment plus” framework, the proper standard for determining
employer liability is the same standard for hostile work
environment claims that I articulated in Burlington Industries,
Inc. , supra . “An employer should be liable if, and
only if, the plaintiff proves that the employer was negligent in
permitting the supervisor’s conduct to occur.” Id. , at
767. If a supervisor takes an adverse employment action because of
sex that directly results in the constructive discharge, the
employer is vicariously liable. Id., at 768. But, where
the alleged constructive discharge results only from a hostile work
environment, an employer is liable if negligent. Ibid. Because respondent has not adduced sufficient evidence of an
adverse employment action taken because of her sex, nor has she
proffered any evidence that petitioner knew or should have known of
the alleged harassment, I would reverse the judgment of the Court
of Appeals.

Summary: In *Pennsylvania State Police v. Suders*, the Supreme Court ruled that to prove "constructive discharge" in a sexual harassment case, an employee must show that the abusive work environment was so intolerable that resigning was a reasonable response. Employers can defend themselves by showing they had an effective complaint process, which the employee failed to use. However, if the employee quits due to an official change in employment status (demotion, pay cut, etc.), the employer's defense may not apply. The Court's ruling clarifies the burden of proof for hostile work environment and constructive discharge claims under Title VII of the Civil Rights Act.