D. Hawai'i Notes Split Re Whether a Constructive Discharge Constitutes a Tangible Employment Action
Per U.S. E.E.O.C. v. Scolari Warehouse Markets, Inc., --- F.Supp.2d ----, 2007 WL 867132 (D.Hawai'i Jan. 29, 2007):
[W]hen no tangible employment action is taken, company policies prohibiting harassment and providing steps to take to eradicate that harassment may be used as an affirmative defense to a claim of hostile work environment. FN14
FN14. For claims of constructive discharge, “[a] plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.” Suders, 542 U.S. at 147 (2004). Circuits are split on whether a constructive discharge constitutes a tangible employment action. This issue is an open question in the Ninth Circuit. See, e.g., Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177, 1185 (9th Cir.2005) (finding no constructive discharge, without answering whether a constructive discharge may constitute a tangible employment action); Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir.1999) (deciding not to make this determination because Plaintiff was not constructively discharged).