Justice Ruth Bader Ginsburg - Pennsylvania State Police v. Suders lyrics

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Justice Ruth Bader Ginsburg - Pennsylvania State Police v. Suders lyrics

Justice GINSBURG delivered the opinion of the Court. 542 U.S. 129, 124 S.Ct. 2342 (2004) Plaintiff-respondent Nancy Drew Suders alleged s**ually hara**ing 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 s**ual hara**ment/constructive discharge claim of that character is a**erted under Title VII of the Civil Rights Act of 1964. To establish hostile work environment, plaintiffs like Suders must show hara**ing behavior “sufficiently severe or pervasive to alter the conditions of [their] employment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (internal quotation marks omitted); see Harris v. Forklift Systems, Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (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 s**ual hara**ment, 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, 118 S.Ct. 2257, 141 L.Ed.2d 633, and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662. 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. In March 1998, the PSP hired Suders as a police communications operator for the McConnellsburg barracks. Suders v. Easton, 325 F.3d 432, 436 (C.A.3 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 s**ual hara**ment that ceased only when she resigned from the force. Ibid. Easton “would bring up [the subject of] people having s** 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 s**. 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 s**. 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 a**, 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. 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 hara**ed 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-sk**s 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and continued to question her. 325 F.3d, at 439. 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 s**ual hara**ment 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. 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, 118 S.Ct. 2275, 141 L.Ed.2d 662. See App. to Pet. for Cert. 77a-78a. In Faragher, along with Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633, decided the same day, the Court distinguished between supervisor hara**ment unaccompanied by an adverse official act and supervisor hara**ment attended by “a tangible employment action.” Id., at 765, 118 S.Ct. 2257; accord Faragher, 524 U.S., at 808, 118 S.Ct. 2275. Both decisions hold that an employer is strictly liable for supervisor hara**ment that “culminates in a tangible employment action, such as discharge, demotion, or undesirable rea**ignment.” Ellerth, 524 U.S., at 765, 118 S.Ct. 2257; accord Faragher, 524 U.S., at 808, 118 S.Ct. 2275. 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 s**ually hara**ing 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, 118 S.Ct. 2257; accord Faragher, 524 U.S., at 807, 118 S.Ct. 2275. 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 hara**ment.” App. to Pet. for Cert. 80a. Resigning just two days after she first mentioned anything about hara**ment 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. 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 s**ual hara**ment 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 a**uming the PSP could a**ert the affirmative defense described in Ellerth and Faragher, genuine issues of material fact existed concerning the effectiveness of the PSP's “program ... to address s**ual hara**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. A plaintiff alleging constructive discharge in violation of Title VII, the Court of Appeals stated, must establish: “(1) he or she suffered hara**ment 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 (C.A.2 1999), and Turner v. Dowbrands, Inc., No. 99-3984, 2000 WL 924599, *1 (C.A.6, 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 rea**ignment). 325 F.3d, at 460 (quoting Ellerth, 524 U.S., at 761, 762, 118 S.Ct. 2257). Satisfied that Suders had “raised genuine issues of material fact as to her claim of constructive discharge,” and that the PSP was “precluded from a**erting 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, 124 S.Ct. 803, 157 L.Ed.2d 692 (2003), to resolve the disagreement among the Circuits on the question whether a constructive discharge brought about by supervisor hara**ment ranks as a tangible employment action and therefore precludes a**ertion 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 (C.A.8 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 (C.A.1 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 (C.A.7 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 hara**ment. 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 a**imilated 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 WL 9535 (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 (C.A.5 1944) (first Circuit case to hold supervisor-caused resignation an unfair labor practice); NLRB v. Saxe-Gla**man Shoe Corp., 201 F.2d 238, 243 (C.A.1 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 (s**ual hara**ment); Moore v. KUKA Welding Systems & Robot Corp., 171 F.3d 1073, 1080 (C.A.6 1999) (race); Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 858-859 (C.A.8 1998) (pregnancy); Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1132-1133 (C.A.4 1995) (national origin); Derr v. Gulf Oil Corp., 796 F.2d 340, 343 (C.A.10 1986) (s**); Young v. Southwestern Sav. & Loan Assn., 509 F.2d 140, 143-144 (C.A.5 1975) (religion). See also Goss v. Exxon Office Systems Co., 747 F.2d 885, 887 (C.A.3 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.” 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, 104 S.Ct. 2803, 81 L.Ed.2d 732 (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, 118 S.Ct. 2257. See also Meritor Savings Bank, FSB v. Vinson, 477 U.S., at 64, 106 S.Ct. 2399 (“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 encompa**es 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 s**ual hara**ment, or “hostile work environment,” attributable to a supervisor. Our starting point is the framework Ellerth and Faragher established to govern employer liability for s**ual hara**ment by supervisors. As earlier noted, see supra, at 2349, those decisions delineate two categories of hostile work environment claims: (1) hara**ment that “culminates in a tangible employment action,” for which employers are strictly liable, Ellerth, 524 U.S., at 765, 118 S.Ct. 2257; accord Faragher, 524 U.S., at 808, 118 S.Ct. 2275, and (2) hara**ment that takes place in the absence of a tangible employment action, to which employers may a**ert an affirmative defense, Ellerth, 524 U.S., at 765, 118 S.Ct. 2257; accord Faragher, 524 U.S., at 807, 118 S.Ct. 2275. 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 s**ual hara**ment by their supervisors, even though the plaintiffs “suffer[ed] no adverse, tangible job consequences.” Ellerth, 524 U.S., at 747, 118 S.Ct. 2257. 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, 118 S.Ct. 2257. 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, 118 S.Ct. 2257 (quoting Restatement § 219(2)(d)); accord Faragher, 524 U.S., at 801, 118 S.Ct. 2275. We then identified “a cla** of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the hara**ment: when a supervisor takes a tangible employment action against the subordinate.” Ellerth, 524 U.S., at 760, 118 S.Ct. 2257. A tangible employment action, the Court explained, “constitutes a significant change in employment status, such as hiring, firing, failing to promote, rea**ignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id., at 761, 118 S.Ct. 2257. 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, 118 S.Ct. 2257. 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, 118 S.Ct. 2257. When a supervisor's hara**ment 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, 118 S.Ct. 2257. We acknowledged that a supervisor's “power and authority invests his or her hara**ing 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 hara**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 employment action is in the picture. Looking elsewhere for guidance, we focused on Title VII's design “to encourage the creation of antihara**ment policies and effective grievance mechanisms.” Id., at 764, 118 S.Ct. 2257. 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 hara**ing 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 hara**ment by establishing, as an affirmative defense, both that “the employer exercised reasonable care to prevent and correct promptly any s**ually hara**ing 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, 118 S.Ct. 2257; accord Faragher, 524 U.S., at 807, 118 S.Ct. 2275. 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, 118 S.Ct. 2257, 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, 118 S.Ct. 2275 (quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231, n. 15, 102 S.Ct. 3057, 73 L.Ed.2d 721 (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, 118 S.Ct. 2257; accord Faragher, 524 U.S., at 807, 118 S.Ct. 2275; 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”). 1. The constructive discharge here at issue stems from, and can be regarded as an aggravated case of, s**ual hara**ment or hostile work environment. For an atmosphere of s**ual hara**ment or hostility to be actionable, we reiterate, see supra, at 2347, 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, 106 S.Ct. 2399 (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 (C.A.8 1999) (“[A]lthough there may be evidence from which a jury could find s**ual hara**ment, ... 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 (C.A.7 1997) (“[U]nless conditions are beyond ‘ordinary' discrimination, a complaining employee is expected to remain on the job while seeking redress.”). Suders' claim is of the same genre as the hostile work environment claims the Court an*lyzed in Ellerth and Faragher. Essentially, Suders presents a “worse case” hara**ment scenario, hara**ment ratcheted up to the breaking point. Like the hara**ment considered in our pathmarking decisions, hara**ment 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 hara**ment claim without any constructive discharge a**ertion, 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 2354, 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 an*lysis, 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, 118 S.Ct. 2257. 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, 118 S.Ct. 2257. 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 2353, is less certain. That uncertainty, our precedent establishes, see supra, at 2353-2354, 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 a**ociated 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, 118 S.Ct. 2275 (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 (C.A.1 2003), the plaintiff claimed a constructive discharge based on her supervisor's repeated s**ual comments and an incident in which he s**ually a**aulted her. The First Circuit held that the alleged wrongdoing did not preclude the employer from a**erting 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 a**ignment 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 (C.A.7 2003), after the plaintiff complained that she was s**ually hara**ed 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 a**erting 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-hara**ment claims according to the presence or absence of an official act, mark the path constructive discharge claims based on hara**ing 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.FN10 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 antihara**ment 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 a**essing whether all, some, or none of the evidence relating to employers' antihara**ment 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 2354. 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. 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. <>