The best advice for sexual harassment victims in the US: don’t complain, just quit and sue

In the last three years, the U.S. Equal Employment Opportunity Commission received 246,575 charges of workplace discrimination, of which 43,437 alleged sexual harassment. In 1998, the U.S. Supreme Court issued two landmark decisions governing how U.S. courts analyze sexual harassment cases. Since those cases, U.S. courts have been faced with a new conundrum: is a constructive discharge a “tangible employment action” that gives rise to automatic employer liability? Although the U.S. Circuit Courts of Appeals have split on the issue, the trend appears to be in favor of imposing automatic liability, effectively denying employers a defense in cases in which the alleged victim often failed to report harassing conduct. This article argues that classifying a “constructive discharge” as a “tangible employment action” will, in most circumstances, violate the Supreme Court’s admonition that “no award against a liable employer should reward a plaintiff for what her own efforts could have avoided”.