PENNSYLVANIA STATE POLICE v. SUDERS

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PENNSYLVANIA STATE POLICE v. SUDERS
certiorari to the united states court of appeals for
the third circuit
No. 03–95. Argued March 31, 2004—Decided June 14, 2004
In March 1998, the Pennsylvania State Police (PSP) hired plaintiff-
respondent Suders to work as a police communications operator for the
McConnellsburg barracks, where her male supervisors subjected her to
a continuous barrage of sexual harassment. In June 1998, Suders told
the PSP’s Equal Employment Opportunity Officer, Virginia Smith-
Elliott, that she might need help, but neither woman followed up on the
conversation. Two months later, Suders contacted Smith-Elliott again,
this time reporting that she was being harassed and was afraid.
Smith-Elliott told Suders to file a complaint, but did not tell her how to
obtain the necessary form. Two days later, Suders’ supervisors ar-
rested her for theft of her own computer-skills exam papers. Suders
had removed the papers after concluding that the supervisors had
falsely reported that she had repeatedly failed, when in fact, the exams
were never forwarded for grading. Suders then resigned from the
force and sued the PSP, 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.
The District Court granted the PSP’s motion for summary judgment.
Although recognizing that Suders’ testimony would permit a fact trier
to conclude that her supervisors had created a hostile work environ-
ment, the court nevertheless held that the PSP was not vicariously lia-
ble for the supervisors’ conduct. In support of its decision, the District
Court referred to Faragher v. Boca Raton, 524 U. S. 775, 808. In that
case, and in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, decided
the same day, this Court held that an employer is strictly liable for
supervisor harassment that “culminates in a tangible employment ac-
tion, such as discharge, demotion, or undesirable reassignment.” Id.,
at 765. But when no such tangible action is taken, both decisions
also hold, the employer may raise an affirmative defense to liability. To
prevail on the basis of the defense, the employer must prove that “(a) [it]
exercised reasonable care to prevent and correct promptly any sexually
harassing behavior,” and that (b) the employee “unreasonably failed to
take advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise.” Ibid. Suders’ hostile
work environment claim was untenable as a matter of law, the District

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Court stated, because she unreasonably failed to avail herself of the
PSP’s internal antiharassment procedures. The court did not address
Suders’ constructive discharge claim.
The Third Circuit reversed and remanded the case for trial. The
appeals court disagreed with the District Court in two key respects:
First, even if the PSP could assert the Ellerth/Faragher affirmative
defense, genuine issues of material fact existed about the effectiveness
of the PSP’s program to address sexual harassment claims; second, Su-
ders had stated a claim of constructive discharge due to hostile work
environment. The appeals court ruled that a constructive discharge, if
proved, constitutes a tangible employment action that renders an em-
ployer strictly liable and precludes recourse to the Ellerth/Faragher
affirmative defense.
Held: To establish “constructive discharge,” a plaintiff alleging sexual
harassment must show that the abusive working environment became
so intolerable that her resignation qualified as a fitting response. An
employer may assert the Ellerth/Faragher affirmative defense to such
a claim unless the plaintiff quit in reasonable response to an adverse
action officially changing her employment status or situation, e. g., a hu-
miliating demotion, extreme cut in pay, or transfer to a position in which
she would face unbearable working conditions. Pp. 141–152.
(a) Under the constructive discharge doctrine, an employee’s reason-
able decision to resign because of unendurable working conditions is
assimilated to a formal discharge for remedial purposes. The inquiry
is objective: Did working conditions become so intolerable that a reason-
able person in the employee’s position would have felt compelled to re-
sign? This doctrine was developed by the National Labor Relations
Board in the 1930’s, and was solidly established in the lower federal
courts by 1964, when Title VII was enacted. The Court agrees that
Title VII encompasses employer liability for a constructive discharge.
Pp. 141–143.
(b) This case concerns employer liability for one subset of construc-
tive discharge claims: those resulting from sexual harassment, or “hos-
tile work environment,” attributable to a supervisor. The Court’s
starting point is the Ellerth/Faragher framework. Those decisions de-
lineate two categories of sexual harassment claims: (1) those alleging a
“tangible employment action,” for which employers may be held strictly
liable; and (2) those asserting no tangible employment action, in which
case employers may assert the affirmative defense. Ellerth, 524 U. S.,
at 765. The key issues here are: Into which Ellerth/Faragher category
hostile-environment constructive discharge claims fall, and what proof
burdens the parties bear in such cases. In Ellerth and Faragher, the

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Court invoked the principle drawn from agency law that an employer is
liable for the acts of its agent when the agent is “aided in accomplishing
the tort by the existence of the agency relation.” Ellerth, 524 U. S., at
758. When a supervisor engaged in harassing conduct takes a tangible
employment action against a subordinate, the Court reasoned, it is be-
yond question that the supervisor is aided by the agency relation. A
tangible employment action, the Court stated, is an “official act of the
enterprise” and “fall[s] within the special province of the supervisor.”
Id., at 762. In contrast, when supervisor harassment does not culmi-
nate in a tangible employment action, Ellerth and Faragher explained,
it is less obvious that the agency relation is the driving force. The
Court also recognized that a liability limitation linked to an employer’s
effort to install effective grievance procedures and an employee’s effort
to report harassing behavior would advance Title VII’s conciliation and
deterrence purposes. Ellerth, 524 U. S., at 764. Accordingly, the
Court held that when no tangible employment action is taken, an em-
ployer may defeat vicarious liability for supervisor harassment by es-
tablishing the two-part affirmative defense. That defense, the Court
observed, accommodates the “avoidable consequences” doctrine Title
VII “borrows from tort law,” ibid., by requiring plaintiffs reasonably to
stave off avoidable harm. Ellerth and Faragher clarify, however, that
the defending employer bears the burden to prove that the plaintiff-
employee unreasonably failed to avoid or reduce harm. Faragher, 524
U. S., at 807. Pp. 143–146.
(1) The constructive discharge at issue stems from, and can be re-
garded as an aggravated case of, sexual harassment or hostile work
environment. For an atmosphere of harassment or hostility to be ac-
tionable, the offending behavior must be sufficiently severe or pervasive
to alter the victim’s employment conditions and create an abusive work-
ing environment. Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57,
67. A hostile-environment constructive discharge claim entails some-
thing more: working conditions so intolerable that a reasonable person
would have felt compelled to resign. Suders’ claim is of the same genre
as the claims analyzed in Ellerth and Faragher. Essentially, Suders
presents a “worse case” harassment scenario, harassment ratcheted up
to the breaking point. Like the harassment considered in Ellerth and
Faragher, 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 company act, a constructive discharge may
or may not involve official action. When it does not, the extent to which
the agency relationship aided the supervisor’s misconduct is less certain,
and that uncertainty justifies affording the employer the chance to es-

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tablish, through the Ellerth/Faragher affirmative defense, that it should
not be held vicariously liable. The Third Circuit erred in drawing the
line differently. Pp. 146–150.
(2) The Third Circuit qualified its holding that a constructive dis-
charge itself constitutes a tangible employment action under Ellerth
and Faragher: The affirmative defense delineated in those cases, the
court noted, might be imported into the anterior issue whether the em-
ployee’s decision to resign was reasonable under the circumstances.
However, the appeals court left open when and how the Ellerth/
Faragher considerations would be brought home to the fact trier. The
Court of Appeals did not address specifically the allocation of pleading
and persuasion burdens, but 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’ anti-
harassment programs and to employees’ exploration of alternative ave-
nues warrants introduction at trial.” 325 F. 3d 432, 463. There is 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. Pp. 150–152.
(c) Although the Third Circuit correctly ruled that the case, in its
current posture, presents genuine issues of material fact concerning
Suders’ hostile work environment and constructive discharge claims,
that court erred in declaring the affirmative defense described in El-
lerth and Faragher never available in constructive discharge cases.
P. 152.
325 F. 3d 432, vacated and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Scalia, Kennedy, Souter, and Breyer,
JJ., joined. Thomas, J., filed a dissenting opinion, post, p. 152.
John G. Knorr III, Chief Deputy Attorney General of
Pennsylvania, argued the cause for petitioner. With him on
the briefs were Gerald J. Pappert, Acting Attorney General,
and Howard G. Hopkirk and Sarah C. Yerger, Deputy Attor-
neys General.
Irving L. Gornstein argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Solicitor General Olson, Assistant Attorney Gen-

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eral Acosta, Deputy Solicitor General Clement, Eric S.
Dreiband, and Lorraine C. Davis.
Donald A. Bailey argued the cause and filed a brief for
respondent.*
Justice Ginsburg delivered the opinion of the Court.
Plaintiff-respondent Nancy Drew Suders alleged sexually
harassing conduct by her supervisors, officers of the Pennsyl-
vania 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 dis-
charge claim of that character is asserted under Title VII of
the Civil Rights Act of 1964.
To establish hostile work environment, plaintiffs like Su-
ders 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 perva-
sive that it created a work environment abusive to employ-
*Briefs of amici curiae urging reversal were filed for the Chamber of
Commerce of the United States by Peter Buscemi, Harry A. Rissetto,
Stephen A. Bokat, and Robin S. Conrad; for the Equal Employment Advi-
sory Council by Ann Elizabeth Reesman and Katherine Y. K. Cheung;
and for the Society for Human Resource Management by Allan H. Weitz-
man, Sarah A. Mindes, Edward Cerasia II, Lawrence Z. Lorber, and
Paul Salvatore.
Briefs of amici curiae urging affirmance were filed for the American
Federation of Labor and Congress of Industrial Organizations by Jona-
than P. Hiatt, James B. Coppess, and Laurence Gold; and for the Lawyers’
Committee for Civil Rights Under Law et al. by Barbara R. Arnwine,
Thomas J. Henderson, Michael L. Foreman, Sarah C. Crawford, Audrey
Wiggins, Susan Grover, Patricia Roberts, Daniel B. Kohrman, Laurie A.
McCann, Thomas Osborne, Melvin Radowitz, Steven R. Shapiro, Lenora
M. Lapidus, Patricia A. Shiu, Claudia Center, Dennis C. Hayes, Vincent
A. Eng, Judith L. Lichtman, Jocelyn C. Frye, Dina R. Lassow, and Jenni-
fer K. Brown.

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ees because of their . . . gender . . . offends Title VII’s broad
rule of workplace equality.”). Beyond that, we hold, to es-
tablish “constructive discharge,” the plaintiff must make a
further showing: She must show that the abusive working
environment became so intolerable that her resignation qual-
ified 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 deci-
sions 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 Dis-
trict 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.1 In March 1998, the PSP
hired Suders as a police communications operator for the Mc-
Connellsburg barracks. Suders v. Easton, 325 F. 3d 432, 436
(CA3 2003). Suders’ supervisors were Sergeant Eric D.
Easton, Station Commander at the McConnellsburg bar-
racks, Patrol Corporal William D. Baker, and Corporal Eric
B. Prendergast. Ibid. Those three supervisors subjected
1 The PSP, we note, “vigorously dispute[s]” the truth of Suders’ allega-
tions, 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.

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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. (in-
ternal 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 geni-
tals 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 bar-
racks. 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 accompa-
nying 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.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 har-
assed and was afraid. Ibid. Smith-Elliott told Suders to
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.

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file a complaint, but did not tell her how to obtain the nec-
essary 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 oc-
curred in the following circumstances. Suders had several
times taken a computer-skills exam to satisfy a PSP job re-
quirement. Id., at 438–439. Each time, Suders’ supervi-
sors 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 prop-
erty, 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, where-
upon 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. 325 F. 3d, at 439. Su-
ders 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 Dis-
trict Court, alleging, inter alia, that she had been subjected

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to sexual harassment and constructively discharged, in viola-
tion of Title VII of the Civil Rights Act of 1964, 78 Stat. 253,
42 U. S. C. § 2000e et seq. App. 1, 12–13.3 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’ con-
duct. 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 Burling-
ton Industries, Inc. v. Ellerth, 524 U. S. 742, decided the
same day, the Court distinguished between supervisor har-
assment unaccompanied by an adverse official act and super-
visor harassment attended by “a tangible employment ac-
tion.” Id., at 765; accord Faragher, 524 U. S., at 808. Both
decisions hold that an employer is strictly liable for supervi-
sor harassment that “culminates in a tangible employment
action, such as discharge, demotion, or undesirable reassign-
ment.” 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 prepon-
derance of the evidence: “The defense comprises two neces-
sary elements: (a) that the employer exercised reasonable
care to prevent and correct promptly any sexually harassing
behavior, and (b) that the plaintiff employee unreasonably
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 Rela-
tions 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.

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failed to take advantage of any preventive or corrective op-
portunities provided by the employer or to avoid harm other-
wise.” 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 “un-
reasonably failed to avail herself of the PSP’s internal proce-
dures for reporting any harassment.” App. to Pet. for Cert.
80a. Resigning just two days after she first mentioned any-
thing about harassment to Equal Employment Opportunity
Officer Smith-Elliott, the court noted, Suders had “never
given [the PSP] the opportunity to respond to [her] com-
plaints.” Ibid. The District Court did not address Suders’
constructive discharge claim.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 “pat-
tern of sexual harassment that was pervasive and regular.”
Id., at 442. But the appeals court disagreed with the Dis-
trict 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,
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.

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genuine issues of material fact existed concerning the effec-
tiveness of the PSP’s “program . . . to address sexual harass-
ment 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.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 relat-
ing 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 em-
ployer recourse to the affirmative defense announced in
those decisions. 325 F. 3d, at 447. The Third Circuit recog-
nized that the Courts of Appeals for the Second and Sixth
Circuits had ruled otherwise. A constructive discharge re-
sulting from a supervisor-created hostile work environment,
both Circuits had held, does not qualify as a tangible employ-
ment action, and therefore does not stop an employer from
5 Although Suders’ complaint did not expressly mention constructive dis-
charge, 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)).

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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. Dow-
brands, 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 Su-
ders had “raised genuine issues of material fact as to her
claim of constructive discharge,” and that the PSP was “pre-
cluded from asserting the affirmative defense to liability ad-
vanced 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 re-
solve the disagreement among the Circuits on the question
whether a constructive discharge brought about by supervi-
sor harassment ranks as a tangible employment action and
therefore precludes assertion of the affirmative defense ar-
ticulated in Ellerth and Faragher. Compare 325 F. 3d, at
461 (constructive discharge qualifies as a tangible employ-
ment 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 supervi-
sor’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

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discharge; absent such a “tangible employment action,” how-
ever, the defense is available to the employer whose supervi-
sors 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 work-
ing conditions is assimilated to a formal discharge for reme-
dial purposes. See 1 B. Lindemann & P. Grossman, Employ-
ment 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 Supple-
ment 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 em-
ployees’ engagement in collective activities. Lieb, Con-
structive Discharge Under Section 8(a)(3) of the National
Labor Relations Act: A Study in Undue Concern Over Mo-
tives, 7 Indus. Rel. L. J. 143, 146–148 (1985); see In re Ster-
ling Corset Co., 9 N. L. R. B. 858, 865 (1938) (first case to use
term “constructive discharg[e]”). Over the next two dec-
ades, Courts of Appeals sustained NLRB constructive dis-
charge 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

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142 PENNSYLVANIA STATE POLICE v. SUDERS
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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 dis-
charge 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 recogni-
tion 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 Op-
portunity 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 dis-
charge of a charging party.” 2 EEOC Compliance Manual
§612.9(a) (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-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 ‘con-
structive discharge.’ ”). Furthermore, we have stated that

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143 Cite as: 542 U. S. 129 (2004)
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“Title VII is violated by either explicit or constructive alter-
ations 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 congres-
sional intent to strike at the entire spectrum of disparate
treatment of men and women in employment.” (some inter-
nal 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 dis-
charge 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 supervi-
sors.6 As earlier noted, see supra, at 137–138, those deci-
sions delineate two categories of hostile work environment
claims: (1) harassment that “culminates in a tangible employ-
ment 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 af-
firmative 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 construc-
tive 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 harass-
ment by their supervisors, even though the plaintiffs “suf-
6 Ellerth and Faragher expressed no view on the employer liability
standard for co-worker harassment. Nor do we.

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144 PENNSYLVANIA STATE POLICE v. SUDERS
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fer[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 rela-
tion.’ ” 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 ques-
tion, more than the mere existence of the employment rela-
tion aids in commission of the harassment: when a supervisor
takes a tangible employment action against the subordi-
nate.” 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 pro-
mote, reassignment with significantly different responsibil-
ities, 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 eco-
nomic 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 enter-
prise to bear on subordinates.” Ibid. Often, the supervi-
sor will “use [the company’s] internal processes” and thereby
“obtain the imprimatur of the enterprise.” Ibid. Ordi-
narily, the tangible employment decision “is documented in
official company records, and may be subject to review by

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145 Cite as: 542 U. S. 129 (2004)
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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 super-
visor’s “power and authority invests his or her harassing con-
duct 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 harass-
ment 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 em-
ployment 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 effec-
tive grievance procedures would advance Congress’ purpose
“to promote conciliation rather than litigation” of Title VII
controversies. Ibid. At the same time, such linkage of lia-
bility limitation to effective preventive and corrective meas-
ures could serve Title VII’s deterrent purpose by “encour-
ag[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 em-
ployer may defeat vicarious liability for supervisor harass-
ment by establishing, as an affirmative defense, both that
“the employer exercised reasonable care to prevent and cor-

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146 PENNSYLVANIA STATE POLICE v. SUDERS
Opinion of the Court
rect promptly any sexually harassing behavior,” and that
“the plaintiff employee unreasonably failed to take advan-
tage 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 conse-
quences 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 reason-
ably to stave off avoidable harm. But both decisions place
the burden squarely on the defendant to prove that the plain-
tiff 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 bur-
den of persuading factfinder “plaintiff could reasonably have
reduced his loss or avoided injurious consequences”).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 133–134, the offending behavior “must be suffi-
ciently severe or pervasive to alter the conditions of the vic-
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. Wig-
more, 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 pecu-
liar means of knowledge enabling him to prove its falsity if it is false.”
(emphasis deleted)).

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tim’s employment and create an abusive working environ-
ment.” Meritor, 477 U. S., at 67 (internal quotation marks
and brackets omitted). A hostile-environment constructive
discharge claim entails something more: A plaintiff who ad-
vances such a compound claim must show working conditions
so intolerable that a reasonable person would have felt com-
pelled to resign. See, e. g., Breeding v. Arthur J. Gal-
lagher & 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 ‘ordi-
nary’ discrimination, a complaining employee is expected to
remain on the job while seeking redress.”).8
Suders’ claim is of the same genre as the hostile work envi-
ronment claims the Court analyzed in Ellerth and Faragher.9
Essentially, Suders presents a “worse case” harassment sce-
8 As earlier noted, see supra, at 141, 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 pro-
vided 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).
9 Both the Ellerth and Faragher plaintiffs resigned from their posts;
plaintiff Ellerth expressly alleged constructive discharge. See Burling-
ton 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 con-
structive 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 construc-
tive 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.

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148 PENNSYLVANIA STATE POLICE v. SUDERS
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nario, 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 termina-
tion, which is always effected through an official act of the
company, a constructive discharge need not be. A construc-
tive discharge involves both an employee’s decision to leave
and precipitating conduct: The former involves no official ac-
tion; the latter, like a harassment claim without any con-
structive 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 re-
spects. See supra, at 147, n. 8. As the Third Circuit ob-
served, 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 offi-
cial act does not underlie the constructive discharge, the El-
lerth 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 con-
trol. See Ellerth, 524 U. S., at 762. Absent “an official act
of the enterprise,” ibid., as the last straw, the employer ordi-
narily would have no particular reason to suspect that a res-
ignation 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 con-
trolling position to the employee’s disadvantage. See El-
lerth, 524 U. S., at 760. Absent such an official act, the ex-
tent to which the supervisor’s misconduct has been aided by
the agency relation, as we earlier recounted, see supra, at

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145, is less certain. That uncertainty, our precedent estab-
lishes, see supra, at 145–146, justifies affording the employer
the chance to establish, through the Ellerth/Faragher af-
firmative defense, that it should not be held vicariously
liable.
The Third Circuit drew the line differently. Under its for-
mulation, the affirmative defense would be eliminated in all
hostile-environment constructive discharge cases, but re-
tained, as Ellerth and Faragher require, in “ordinary” hostile
work environment cases, i. e., cases involving no tangible em-
ployment action. That placement of the line, anomalously,
would make the graver claim of hostile-environment con-
structive 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 nec-
essary predicate to a hostile-environment constructive dis-
charge case. Juries would be so informed. Under the
Third Circuit’s decision, a jury, presumably, would be cau-
tioned 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 condi-
tions. 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 dis-
charge is alleged. Both decisions advance the untangled ap-
proach we approve in this opinion. In Reed v. MBNA Mar-
keting Systems, Inc., 333 F. 3d 27 (CA1 2003), the plaintiff
claimed a constructive discharge based on her supervisor’s

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150 PENNSYLVANIA STATE POLICE v. SUDERS
Opinion of the Court
repeated sexual comments and an incident in which he sexu-
ally 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 ex-
plained in Reed, the supervisor’s behavior involved no official
actions. Unlike, “e. g., an extremely dangerous job assign-
ment 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 con-
trast, 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 de-
cided 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 pre-
cluded from asserting the affirmative defense to the plain-
tiff ’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 transfer-
ring” her to a judge who resisted placing her on his staff.
Id., at 337. The courts in Reed and Robinson properly rec-
ognized that Ellerth and Faragher, which divided the uni-
verse of supervisor-harassment claims according to the pres-
ence 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 El-
lerth and Faragher delineated, the court said, might be im-
ported into the anterior issue whether “the employee’s deci-

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151 Cite as: 542 U. S. 129 (2004)
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sion to resign was reasonable under the circumstances.”
325 F. 3d, at 462.10 As the Third Circuit expressed its
thinking:
“[I]t may be relevant to a claim of constructive dis-
charge whether an employer had an effective remedial
scheme in place, whether an employer attempted to in-
vestigate, or otherwise to address, plaintiff ’s complaints,
and whether plaintiff took advantage of alternatives of-
fered 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 plead-
ing and persuasion burdens. It simply relied on “the wis-
dom and expertise of trial judges to exercise their gatekeep-
ing authority when assessing whether all, some, or none of
the evidence relating to employers’ antiharassment programs
and to employees’ exploration of alternative avenues war-
rants introduction at trial.” 325 F. 3d, at 463.
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 decid-
ing 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 be-
tween elements of constructive discharge and of the Faragher/Ellerth [af-
firmative] defense”).

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152 PENNSYLVANIA STATE POLICE v. SUDERS
Thomas, J., dissenting
We see no cause for leaving the district courts thus un-
guided. Following Ellerth and Faragher, the plaintiff who
alleges no tangible employment action has the duty to miti-
gate harm, but the defendant bears the burden to allege and
prove that the plaintiff failed in that regard. See supra, at
146. The plaintiff might elect to allege facts relevant to mit-
igation 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 cur-
rent posture, presents genuine issues of material fact con-
cerning Suders’ hostile work environment and constructive
discharge claims.11 We hold, however, that the Court of Ap-
peals erred in declaring the affirmative defense described in
Ellerth and Faragher never available in constructive dis-
charge cases. Accordingly, we vacate the Third Circuit’s
judgment and remand the case for further proceedings con-
sistent with this opinion.
It is so ordered.
Justice Thomas, dissenting.
As the Court explains, the National Labor Relations
Board (NLRB) developed the concept of constructive dis-
charge to address situations in which employers coerced em-
ployees into resigning because of the employees’ involvement
in union activities. See ante, at 141–142. In light of this
specific focus, the NLRB requires employees to establish two
elements to prove a constructive discharge. First, the em-
ployer must impose burdens upon the employee that “cause,
and [are] intended to cause, a change in his working condi-
tions so difficult or unpleasant as to force him to resign.
11 Although most of the discriminatory behavior Suders alleged involved
unofficial conduct, the events surrounding her computer-skills exams, see
supra, at 136, were less obviously unofficial.

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153 Cite as: 542 U. S. 129 (2004)
Thomas, J., dissenting
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 im-
ported 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 ren-
der[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 ac-
tions. 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 em-
ployee 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 ac-
tual discharge. The Court holds that to establish “ ‘con-
structive discharge,’ ” a plaintiff must “show that the abusive
working environment became so intolerable that [the em-
ployee’s] resignation qualified as a fitting response.” Ante,
at 134. Under this rule, it is possible to allege a construc-
tive discharge absent any adverse employment action.
Moreover, a majority of Courts of Appeals have declined to
impose a specific intent or reasonable foreseeability require-
ment. See, e. g., Brooks v. 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,

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154 PENNSYLVANIA STATE POLICE v. SUDERS
Thomas, J., dissenting
diligent, and reasonable employee to remain on the job to
earn a livelihood and to serve his or her employer” (internal
quotation marks omitted)).
Thus, as it is currently conceived, a “constructive” dis-
charge does not require a “company ac[t] that can be per-
formed 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 un-
dertaken 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 146. 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 articu-
lated 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 con-
duct to occur.” Id., at 767. If a supervisor takes an ad-
verse employment action because of sex that directly results
in the constructive discharge, the employer is vicariously lia-
ble. Id., at 768. But, where the alleged constructive dis-
charge results only from a hostile work environment, an em-
ployer 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.