source: Caselaw Access Project

author: Justice Ginsburg Justice Thomas,

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text:
    PENNSYLVANIA STATE POLICE v. SUDERS
    No. 03-95.
    Argued March 31, 2004 —
    Decided June 14, 2004

      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 Attorneys 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

      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.

      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 Advisory 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 Jonathan 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 Jennifer K. Brown.

   Justice Ginsburg

delivered the opinion of the Court.

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

To establish hostile work environment, plaintiffs like 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 pervasive that it created a work environment abusive to employees because of their ... gender ... offends Title VII’s broad rule of workplace equality.”). Beyond that, we hold, to establish “constructive discharge,” the plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may defend against such a claim by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus. This affirmative defense will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. In so ruling today, we follow the path marked by our 1998 decisions in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, and Faragker v. Boca Raton, 524 U. S. 775.

I

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

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

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

Two days later, Suders’ supervisors arrested her for theft, and Suders resigned from the force. The theft arrest occurred in the following circumstances. Suders had several times taken a computer-skills exam to satisfy a PSP job requirement. Id., at 438-439. Each time, Suders’ supervisors told her that she had failed. Id., at 439. Suders one day came upon her exams in a set of drawers in the women’s locker room. She concluded that her supervisors had never forwarded the tests for grading and that their reports of her failures were false. Ibid. Regarding the tests as her property, Suders removed them from the locker room. Ibid.; App. 11, 119-120. Upon finding that the exams had been removed, Suders’ supervisors devised a plan to arrest her for theft. 325 F. 3d, at 438-439. The officers dusted the drawer in which the exams had been stored with a theft-detection powder that turns hands blue when touched. Id., at 439. As anticipated by Easton, Baker, and Prendergast, Suders attempted to return the tests to the drawer, whereupon her hands turned telltale blue. Ibid. The supervisors then apprehended and handcuffed her, photographed her blue hands, and commenced to question her. Ibid. Suders had previously prepared a written resignation, which she tendered soon after the supervisors detained her. Ibid. Nevertheless, the supervisors initially refused to release her. Instead, they brought her to an interrogation room, gave her warnings under Miranda v. Arizona, 384 U. S. 436 (1966), and continued to question her. 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 District Court, alleging, inter alia, that she had been subjected to sexual harassment and constructively discharged, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq. App. 1, 12-13. At the close of discovery, the District Court granted the PSP’s motion for summary judgment. Suders’ testimony, the District Court recognized, sufficed to permit a trier of fact to conclude that the supervisors had created a hostile work environment. App. to Pet. for Cert. 76a. The court nevertheless held that the PSP was not vicariously liable for the supervisors’ conduct. Id., at 80a.

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

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

The Court of Appeals for the Third Circuit reversed and remanded the case for disposition on the merits. 325 F. 3d, at 462. The Third Circuit agreed with the District Court that Suders had presented evidence sufficient for a trier of fact to conclude that the supervisors had engaged in a “pattern of sexual harassment that was pervasive and regular.” Id., at 442. But the appeals court disagreed with the District Court in two fundamental respects. First, the Court of Appeals held that, even assuming the PSP could assert the affirmative defense described in Ellerth and Faragher, genuine issues of material fact existed concerning the effectiveness of the PSP’s “program ... to address sexual harassment claims.” 325 P. 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 harassment or discrimination so intolerable that a reasonable person in the same position would have felt compelled to resign . . . ; and (2) the employee’s reaction to the workplace situation — that is, his or her decision to resign — was reasonable given the totality of circumstances ....” Id., at 445.

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

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

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

II

A

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

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

The Courts of Appeals have recognized constructive discharge claims in a wide range of Title VII cases. See, e. g., Robinson, 351 F. 3d, at 336-337 (sexual harassment); Moore v. KUKA Welding Systems & Robot Corp., 171 F. 3d 1073, 1080 (CA6 1999) (race); Bergstrom-Ek v. Best Oil Co., 153 F. 3d 851, 858-859 (CA8 1998) (pregnancy); Amirmokri v. Baltimore Gas & Elec. Co., 60 F. 3d 1126, 1132-1133 (CA4 1995) (national origin); Derr v. Gulf Oil Corp., 796 F. 2d 340, 343 (CA10 1986) (sex); Young v. Southwestern Sav. & Loan Assn., 509 F. 2d 140, 143-144 (CA5 1975) (religion). See also Goss v. Exxon Office Systems Co., 747 F. 2d 885, 887 (CA3 1984) (“[Application 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 (1984) (NLRB may find employer engaged in unfair labor practice “when, for the purpose of discouraging union activity, . . . [the employer] creates working conditions so intolerable that the employee has no option but to resign — a so-called ‘constructive discharge.’”). Furthermore, we have stated that “Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment.” Ellerth, 524 U. S., at 752. See also Meritor Savings Bank, FSB v. Vinson, 477 U. S., at 64 (“The phrase ‘terms, conditions, or privileges of employment’ [in Title VII] evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.” (some internal quotation marks omitted)). We agree with the lower courts and the EEOC that Title VII encompasses employer liability for a constructive discharge.

B

This case concerns an employer’s liability for one subset of Title VII constructive discharge claims: constructive discharge resulting from sexual harassment, or “hostile work environment,” attributable to a supervisor. Our starting point is the framework Ellerth and Faragher established to govern employer liability for sexual harassment by supervisors. As earlier noted, see supra, at 137-138, those decisions delineate two categories of hostile work environment claims: (1) harassment that “culminates in a tangible employment action,” for which employers are strictly liable, Ellerth, 524 U. S., at 765; accord Faragher, 524 U. S., at 808, and (2) harassment that takes place in the absence of a tangible employment action, to which employers may assert an affirmative defense, Ellerth, 524 U. S., at 765; accord Faragher, 524 U. S., at 807. With the background set out above in mind, we turn to the key issues here at stake: Into which Ellerth/Faragher category do hostile-environment constructive discharge claims fall — and what proof burdens do the parties bear in such cases.

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

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

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

An “aided-by-the-agency-relation” standard, the Court suggested, was insufficiently developed to press into service as the standard governing cases in which no tangible employment action is in the picture. Looking elsewhere for guidance, we focused on Title VII’s design “to encourage the creation of antiharassment policies and effective grievance mechanisms.” Id., at 764. The Court reasoned that tying the liability standard to an employer’s effort to install effective grievance procedures would advance Congress’ purpose “to promote conciliation rather than litigation” of Title VII controversies. Ibid. At the same time, such linkage of liability limitation to effective preventive and corrective measures could serve Title VII’s deterrent purpose by “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 employer may defeat vicarious liability for supervisor harassment by establishing, as an affirmative defense, both that “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and that “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Id., at 765; accord Faragher, 524 U. S., at 807.

Ellerth and Faragher also clarified the parties’ respective proof burdens in hostile environment cases. Title VII, the Court noted, “borrows from tort law the avoidable consequences doctrine,” Ellerth, 524 U. S., at 764, under which victims have “a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize the damages’ that result from violations of the statute,” Faragher, 524 U. S., at 806 (quoting Ford Motor Co. v. EEOC, 458 U. S. 219, 231, n. 15 (1982)). The Ellerth/Faragher affirmative defense accommodates that doctrine by requiring plaintiffs reasonably to stave .off avoidable harm. But both decisions place the burden squarely on the defendant to prove that the plaintiff unreasonably failed to avoid or reduce harm. Ellerth, 524 U. S., at 765; accord Faragher, 524 U. S., at 807; cf. C. McCormick, Law of Damages 130 (1935) (defendant has burden of persuading factfinder “plaintiff could reasonably have reduced his loss or avoided injurious consequences”).

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 sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor, 477 U. S., at 67 (internal quotation marks and brackets omitted). A hostile-environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. See, e.g., Breeding v. Arthur J Gallagher & Co., 164 F. 3d 1151, 1160 (CA8 1999) (“[Although 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) (“[Ujnless 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 analyzed in Ellerth and Faragher, Essentially, Suders presents a “worse case” harassment see-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 termination, which is always effected through an official act of the company, a constructive discharge need not be. A constructive discharge involves both an employee’s decision to leave and precipitating conduct: The former involves no official action; the latter, like a harassment claim without any constructive discharge assertion, may or may not involve official action. See Brief for United States as Amicus Curiae 24.

To be sure, a constructive discharge is functionally the same as an actual termination in damages-enhancing respects. See supra, at 147, n. 8. As the Third Circuit observed, both “en[d] the employer-employee relationship,” and both “inflic[t]. . . direct economic harm.” 325 F. 3d, at 460 (internal quotation marks omitted). But when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold, calls for extension of the affirmative defense to the employer. As those leading decisions indicate, official directions and declarations are the acts most likely to be brought home to the employer, the measures over which the employer can exercise greatest control. See Ellerth, 524 U. S., at 762. Absent “an official act of the enterprise,” ibid., as the last straw, the employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force. And as Ellerth and Faragher further point out, an official act reflected in company records — a demotion or a reduction in compensation, for example — shows “beyond question” that the supervisor has used his managerial or controlling position to the employee’s disadvantage. See Ellerth, 524 U. S., at 760. Absent such an official act, the extent to which the supervisor’s misconduct has been aided by the agency relation, as we earlier recounted, see supra, at 145, is, less certain. That uncertainty, our precedent establishes, see supra, at 145-146, justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable.

The Third Circuit drew the line differently. Under its formulation, the affirmative defense would be eliminated in all hostile-environment constructive discharge cases, but retained, as Ellerth and Faragher require, in “ordinary” hostile work environment cases, i. e., cases involving no tangible employment action. That placement of the line, anomalously, would make the graver claim of hostile-environment constructive discharge easier to prove than its lesser included component, hostile work environment. Moreover, the Third Circuit’s formulation, that court itself recognized, would make matters complex, indeed, more than a little confusing to jurors. Creation of a hostile work environment is a necessary predicate to a hostile-environment constructive discharge case. Juries would be so informed. Under the Third Circuit’s decision, a jury, presumably, would be cautioned to consider the affirmative-defense evidence only in reaching a decision on the hostile work environment claim, and to ignore or at least downplay that same evidence in deciding the closely associated constructive discharge claim. It makes scant sense thus to alter the decisive instructions from one claim to the next when the only variation between the two claims is the severity of the hostile working conditions. Cf. Faragher, 524 U. S., at 801 (affirming “the virtue of categorical clarity”).

We note, finally, two recent Court of Appeals decisions that indicate how the “official act” (or “tangible employment action”) criterion should play out when constructive discharge is alleged. Both decisions advance the untangled approach we approve in this opinion. In Reed v. MBNA Marketing Systems, Inc., 333 F. 3d 27 (CA1 2003), the plaintiff claimed a constructive discharge based on her supervisor’s repeated sexual comments and an incident in which he sexually assaulted her. The First Circuit held that the alleged wrongdoing did not preclude the employer from asserting the Ellerth/Faragher affirmative defense. As the court explained in Reed, the supervisor’s behavior involved no official actions. Unlike, “e. g., an extremely dangerous job assignment to retaliate for spurned advances,” 333 F. 3d, at 33, the supervisor’s conduct in Reed “was exceedingly unofficial and involved no direct exercise of company authority”; indeed, it was “exactly the kind of wholly unauthorized conduct for which the affirmative defense was designed,” ibid. In contrast, in Robinson v. Sappington, 351 F. 3d 317 (CA7 2003), after the plaintiff complained that she was sexually harassed by the judge for whom she worked, the presiding judge decided to transfer her to another judge, but told her that “her first six months [in the new post] probably would be ‘hell,’ ” and that it was in her “‘best interest to resign.’” Id., at 324. The Seventh Circuit held that the employer was precluded from asserting the affirmative defense to the plaintiff’s constructive discharge claim. The Robinson plaintiff’s decision to resign, the court explained, “resulted, at least in part, from [the presiding judge’s] official actio[n] in transferring” her to a judge who resisted placing her on his staff. Id., at 337. The courts in Reed and Robinson properly recognized that Ellerth and Faragher, which divided the universe of supervisor-harassment claims according to the presence or absence of an official act, mark the path constructive discharge claims based on harassing conduct must follow.

2

In its summation, the Third Circuit qualified its holding that a constructive discharge itself “constitutes a tangible employment action within the meaning of Ellerth and Faragher.” 325 F. 3d, at 462. The affirmative defense Ellerth and Faragher delineated, the court said, might be imported into the anterior issue whether “the employee’s decision to resign was reasonable under the circumstances.” 325 F. 3d, at 462. As the Third Circuit expressed its thinking:

“[I]t may be relevant to a claim of constructive discharge whether an employer had an effective remedial scheme in place, whether an employer attempted to investigate, or otherwise to address, plaintiff’s complaints, and whether plaintiff took advantage of alternatives offered by antiharassment programs.” Ibid.

These considerations, the Third Circuit recognized, “are, of course, the same considerations relevant to the affirmative defense in Ellerth and Faragher.” Ibid.

The Third Circuit left open when and how the Ellerth/ Faragher considerations would be brought home to the fact trier. It did not address specifically the allocation of pleading and persuasion burdens. It simply relied on “the wisdom and expertise of trial judges to exercise their 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 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 146. 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.

Justice Thomas,

dissenting.

As the Court explains, the National Labor Relations Board (NLRB) developed the concept of constructive discharge to address situations in which employers coerced employees into resigning because of the employees’ involvement in union activities. See ante, at 141-142. In light of this specific focus, the NLRB requires employees to establish two elements to prove a constructive discharge. First, the employer must impose burdens upon the employee that “cause, and [are] intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employee’s union activities.” Crystal Princeton Refining Co., 222 N. L. R. B. 1068, 1069 (1976).

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

The Court has now adopted a definition of constructive discharge, however, that does not in the least resemble actual discharge. The Court holds that to establish “‘constructive discharge,’ ” a plaintiff must “show that the abusive working environment became so intolerable that [the employee’s] resignation qualified as a fitting response.” Ante, at 134. Under this rule, it is possible to allege a constructive discharge absent any adverse employment action. Moreover, a majority of Courts of Appeals have declined to impose a specific intent or reasonable foreseeability requirement. See, e. g., Brooks v. San Mateo, 229 F. 3d 917, 930 (CA9 2000) (“[Constructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer” (internal quotation marks omitted)).

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

       The PSP, we note, “vigorously dispute^]” the truth of Suders’ allegations, contending that some of the incidents she describes “never happened at all,” while “others took place in a context quite different from that suggested by [Suders].” Brief for Petitioner 4, n. 3.

       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.

       Suders raised several other claims that are not at issue here, including claims under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, 29 U. S. C. §621 et seq., and the Pennsylvania Human Relations Act (PHRA), Pa. Stat. Ann., Tit. 43, §951 et seq. (Purdon 1991). App. 7. She also asserted claims against Easton, Baker, Prendergast, and Smith-Elliott in their individual capacities under Title VII, the ADEA, and the PHRA. App. to Pet. for Cert. 70a-73a.

       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.

       Although Suders’ complaint did not expressly mention constructive discharge, the Third Circuit found “[t]he allegations of constructive discharge . . . apparent on the face of Suders’s [pleading].” 325 F. 3d, at 443; see ibid. (“In the very first paragraph, Suders alleged that she was ‘forced to suffer a termination of employment because she would not yield to sexual suggestions [and] innuendoes ....’” (quoting Introductory Statement to Suders’ complaint, reprinted in this Court at App. 6)).

         Ellerth and Faragher expressed no view on the employer liability standard for co-worker harassment. Nor do we.

       The employer is in the best position to know what remedial procedures it offers to employees and how those procedures operate. See 9 J. Wigmore, Evidence § 2486, p. 290 (J. Chadbourn rev. ed. 1981) (“[T]he burden of proving a fact is said to be put on the party who presumably has peculiar means of knowlédge enabling him to prove its falsity if it is false.” (emphasis deleted)).

       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 provided for Title VII claims generally, see 42 U. S. C. § 1981a(a)(1); Pollard v. E. I. du Pont de Nemours & Co., 532 U. S. 843, 848 (2001) (noting expanded remedies under Civil Rights Act of 1991).

       Both the Ellerth and Faragher plaintiffs resigned from their posts; plaintiff Ellerth expressly alleged constructive discharge. See Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 748-749 (1998); Faragher v. Boca Raton, 524 U. S. 775, 783 (1998). Although Ellerth’s constructive discharge claim was not before this Court, the decision’s omission of constructive discharge from its examples of tangible employment actions is conspicuous. See 524 U. S., at 761; Brief for Chamber of Commerce of the United States as Amicus Curiae 10 (“[T]his Court’s omission of constructive discharge in its discussion of tangible employment actions was widely regarded as a purposeful one.”). Tellingly, we stated that Ellerth “ha[d] not alleged she suffered a tangible employment action,” despite the fact that her complaint alleged constructive discharge. 524 U. S., at 766.

       For similar expressions, see, e. g., Jaros v. LodgeNet Entertainment Corp., 294 F. 3d 960, 965 (CA8 2002) (though not entitled to the Ellerth/ Faragher affirmative defense, employer facing constructive discharge complaint may assert that plaintiff “did not give it a chance to respond to her [grievance]” in rebutting plaintiff’s contention that conditions were so intolerable as to force her resignation); Marrero v. Goya of Puerto Rico, Inc., 304 F. 3d 7, 28 (CA1 2002) (“the jury reasonably can take into account how the employer responded to the plaintiff's complaints, if any,” in deciding whether conditions were intolerable); Hartman v. Sterling, Inc., No. Civ. A. 01-CV-2630, 2003 WL 22358548, *13 (ED Pa., Sept. 10, 2003) (noting “it is relevant,” but not dispositive, whether plaintiff complained); Brief for Lawyers’ Committee for Civil Rights Under Law et al. as Amici Curiae 19 (affirmative defense unnecessary because of “the overlap between elements of constructive discharge and of the Faragher/Ellerth [affirmative] defense”).

       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.


author:
      Justice Breyer
      Justice Scalia,

text:
    F. HOFFMANN-La ROCHE LTD et al. v. EMPAGRAN S. A. et al.
    No. 03-724.
    Argued April 26, 2004 —
    Decided June 14, 2004

      Stephen M. Shapiro argued the cause for petitioners. With him on the briefs were Arthur F Golden, Tyrone C. Fahner, Andrew S. Marovitz, Jeffrey W Sarles, Lawrence Portnoy, Charles S. Duggan, John M. Majoras, Daniel H. Bromberg, Kenneth Prince, Lawrence Byrne, Bruce L. Montgomery, D. Stuart Meiklejohn, Michael L. Denger, Miguel A. Estrada, Laurence T. Sorkin, Roy L. Regozin, Donald I. Baker, Donald C. Klawiter, Peter E. Halle, James R. Weiss, Jim J. Shoemake, Thomas M. Mueller, Michael O. Ware, Aileen Meyer, Sutton Keany, Kenneth W. Starr, Moses Silverman, Aidan Synnott, Mark Riera, Kevin R. Sullivan, Peter M. Todaro, William J. Kolasky, and Edward DuMont.

      Assistant Attorney General Pate argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Kneedler, Deputy Assistant Attorney General Delrahim, Lisa S. Blatt, Robert B. Nicholson, Steven J. Mintz, William H. Taft IV, and John D. Graubert.

      Thomas C. Goldstein argued the cause for respondents. With him on the brief were Amy Howe, Michael H. Gottesman, Michael D. Hausfeld, Paul T. Gallagher, and Brian A-. Ratner

       Briefs of amici curiae urging reversal were filed for the Government of Canada by Homer E.-'Moyer, Jr., Michael T. Brady, and Alan I. Horowitz; for the Government of the Federal Republic of Germany et al. by David C. Frederick; for the Government of the United Kingdom of Great Britain and Northern Ireland et al. by Ernest Gellhorn and Ann

        Weymouth; for the Government of Japan by Douglas E. Rosenthal; for the Business Roundtable by Janet L. McDavid, Jonathan S. Franklin, and William H. Johnson; for the Chamber of Commerce of the United States et al. by Roy T. Englert, Jr., Donald J. Russell, Max Huffman, and Robin S. Conrad; for Bank Austria AG et al. by Carter G. Phillips, Virginia A. Seitz, John H. Shenefield, Jonathan M. Rich, Robert A. Horowitz, Richard A. Martin, Richard S. Goldstein, Jeffrey Barist, Charles Westland, and Richard L. Mattiaccio; and for the International Chamber of Commerce by A. Paul Victor and Steven Alan Reiss.

      Briefs of amici curiae urging affirmance were filed for the Committee to Support the Antitrust Laws et al. by Charles J. Cooper and David H. Thompson; for Public Citizen by Amanda Frost and Brian Wolfman; for Harry First et al. by Jonathan S. Massey, Lynn Lincoln Sarko, Mark A. Griffin, Edgar D. Gankendorff, and Henry S. Provosty; for Ralf Michaels et al. by Arthur R. Miller; and for Joseph E. Stiglitz et al. by Erik S. Jaffe and Mary Boies.

      Briefs of amici curiae were filed for Certain Professors of Economics by James vanR: Springer and James R. Martin; and for Darren Bush etal. by Peter J. Rubin.

   Justice Breyer

delivered the opinion of the Court.

The Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) excludes from the Sherman Act’s reach much anti-competitive conduct that causes only foreign injury. It does so by setting forth a general rule stating that the Sherman Act “shall not apply to conduct involving trade or commerce ... with foreign nations'.” 96 Stat. 1246,15 U. S. C. § 6a. It then creates exceptions to the general rule, applicable where (roughly speaking) that conduct significantly harms imports, domestic commerce, or American exporters.

We here focus upon anticompetitive price-fixing activity that is in significant part foreign, that causes some domestic antitrust injury, and that independently causes separate foreign injury. We ask two questions about the price-fixing conduct and the foreign injury that it causes. First, does that conduct fall within the FTAIA’s general rule excluding the Sherman Act’s application? That is to say, does the price-fixing activity constitute “conduct involving trade or commerce . . . with foreign nations”? We conclude that it does.

Second, we ask whether the conduct nonetheless falls within a domestic-injury exception to the general rule, an exception that applies (and makes the Sherman Act nonetheless applicable) where the conduct (1) has a “direct, substantial, and reasonably foreseeable effect” on domestic commerce, and (2) “such effect gives rise to a [Sherman Act] claim.” §§6a(1)(A), (2). We conclude that the exception does not apply where the plaintiff’s claim rests solely on the independent foreign harm.

To clarify: The issue before us concerns (1) significant foreign anticompetitive conduct with (2) an adverse domestic effect and (3) an independent foreign effect giving rise to the claim. In more concrete terms, this case involves vitamin sellers around the world that agreed to fix prices, leading to higher vitamin prices in the United States and independently leading to higher vitamin prices in other countries such as Ecuador. We conclude that, in this scenario, a purchaser in the United States could bring a Sherman Act claim under the FTAIA based on domestic injury, but a purchaser in Ecuador could not bring a Sherman Act claim based on foreign harm.

I

The plaintiffs in this case originally filed a class-action suit on behalf of foreign and domestic purchasers of vitamins under, inter alia, §1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, and §§4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U. S. C. §§ 15, 26. Their complaint alleged that petitioners, foreign and domestic vitamin manufacturers and distributors, had engaged in a price-fixing conspiracy, raising the price of vitamin products to customers in the United States and to customers in foreign countries.

As relevant here, petitioners moved to dismiss the suit as to the foreign purchasers (the respondents here), five foreign vitamin distributors located in Ukraine, Australia, Ecuador, and Panama, each of which bought vitamins from petitioners for delivery outside the United States. No. Civ. 001686TFH, 2001 WL 761360, *4 (D. D. C., June 7, 2001) (describing the relevant transactions as “wholly foreign”). Respondents have never asserted that they purchased any vitamins in the United States or in transactions in United States commerce, and the question presented assumes that the relevant “transactions occurred] entirely outside U. S. commerce,” Pet. for Cert. (i). The District Court dismissed their claims. 2001 WL 761360, at *4. It applied the FTAIA and found none of the exceptions applicable. Id., at *3-*4. Thereafter, the domestic purchasers transferred their claims to another pending suit and did not take part in the subsequent appeal. 315 F. 3d 338, 343 (CADC 2003).

A divided panel of the Court of Appeals reversed. 315 F. 3d 338. The panel concluded that the FTAIA’s general exclusionary rule applied to the case, but that its domestic-injury exception also applied. It basically read the plaintiffs’ complaint to allege that the vitamin manufacturers’ price-fixing conspiracy (1) had “a direct, substantial, and reasonably foreseeable effect” on ordinary domestic trade or commerce, i. e., the conspiracy brought about higher domestic vitamin prices, and (2) “such effect” gave “rise to a [Sherman Act] claim,” i. e., an injured domestic customer could have brought a Sherman Act suit, 15 U. S. C. §§ 6a(1), (2). Those allegations, the court held, are sufficient to meet the exception’s requirements. 315 F. 3d, at 341.

The court assumed that the foreign effect, i. e., higher prices in Ukraine, Panama, Australia, and Ecuador, was independent of the domestic effect, i. e., higher domestic prices. Ibid. But it concluded that, in light of the FTAIA’s text, legislative history, and the policy goal of deterring harmful price-fixing activity, this lack of connection does not matter. Ibid. The District of Columbia Circuit denied rehearing en bane by a 4-to-3 vote. App. to Pet. for Cert. 44a.

We granted certiorari to resolve a split among the Courts of Appeals about the exception’s application. Compare Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F. 3d 420, 427 (CA5 2001) (exception does not apply where foreign injury independent of domestic harm), with Kruman v. Christie’s Int’l PLC, 284 F. 3d 384, 400 (CA2 2002) (exception does apply even where foreign injury independent); 315 F. 3d, at 341 (similar).

II

The FTAIA seeks to make clear to American exporters (and to firms doing business abroad) that the Sherman Act does not prevent them from entering into business arrangements (say, joint-selling arrangements), however anticompet-itive, as long as those arrangements adversely affect only foreign markets. See H. R. Rep. No. 97-686, pp. 1-3, 9-10 (1982) (hereinafter House Report). It does so by removing from the Sherman Act’s reach, (1) export activities and (2) other commercial activities taking place abroad, unless those activities adversely affect domestic commerce, imports to the United States, or exporting activities of one engaged in such activities within the United States.

The FTAIA says:

“Sections 1 to 7 of this title [the Sherman Act] shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless—
“(1) such conduct has a direct, substantial, and reasonably foreseeable effect—
“(A) on trade or commerce which is not trade or commerce with foreign nations [i. e., domestic trade or commerce], or on import trade or import commerce with foreign nations; or
“(B) on export trade or export commerce with foreign nations, of a person engaged in such trade or commerce in the United States [i. e., on an American export competitor]; and
“(2) such effect gives rise to a claim under the provisions of sections 1 to 7 of this title, other than this section.
“If sections 1 to 7 of this title apply to such conduct only because of the operation of paragraph (1)(B), then sections 1 to 7 of this title shall apply to such conduct only for injury to export business in the United States.” 15U.S.C. §6a.

This technical language initially lays down a general rule placing all (nonimport) activity involving foreign commerce outside the Sherman Act’s reach. It then brings such conduct back within the Sherman Act’s reach provided that the conduct both (1) sufficiently affects American commerce, i e., it has a “direct, substantial, and reasonably foreseeable effect” on American domestic, import, or (certain) export commerce, and (2) has an effect of a kind that antitrust law considers harmful, i. e., the “effect” must “giv[e] rise to a [Sherman Act] claim.” §§6a(1), (2).

We ask here how this language applies to price-fixing activity that is in significant part foreign, that has the requisite domestic effect, and that also has independent foreign effects giving rise to the plaintiff’s claim.

HI

Respondents make a threshold argument. They say that the transactions here at issue fall outside the FTAIA because the FTAIA’s genéral exclusionary rule applies only to conduct involving exports. The rule says that the Sherman Act “shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations.” §6a (emphasis added). The word “with” means between the United States and foreign nations. And, they contend, commerce between the United States and foreign nations that is not import commerce must consist of export commerce — a kind of commerce irrelevant to the case at hand.

The difficulty with respondents’ argument is that the FTAIA originated in a bill that initially referred only to “export trade or export commerce.” H. R. 5235, 97th Cong., 1st Sess., §1 (1981). But the House Judiciary Committee subsequently changed that language to “trade or commerce (other than import trade or import commerce).” 15 U. S. C. § 6a. And it did so deliberately to include commerce that did not involve American exports but which was wholly foreign.

The House Report says in relevant part:

“The Subcommittee’s ‘export’ commerce limitation appeared to make the amendments inapplicable to transactions that were neither import nor export, i. e., transactions within, between, or among other nations. . . . Such foreign transactions should, for the purposes of this legislation, be treated in the same manner as export transactions — that is, there should be no American antitrust jurisdiction absent a direct, substantial and reasonably foreseeable effect on domestic commerce or a domestic competitor. The Committee amendment therefore deletes references to ‘export’ trade, and substitutes phrases such as ‘other than import’ trade. It is thus clear that wholly foreign transactions as well as export transactions are covered, by the amendment, but that import transactions are not.” House Report, at 9-10 (emphases added).

For those who find legislative history useful, the House Report’s account should end the matter. Others, by considering carefully the amendment itself and the lack of any other plausible purpose, may reach the same conclusion, namely, that the FTAIA’s general rule applies where the an-ticompetitive conduct at issue is foreign.

IV

We turn now to the basic question presented, that of the exception’s application. Because the underlying antitrust action is complex, potentially raising questions not directly at issue here, we reemphasize that we base our decision upon the following: The price-fixing conduct significantly and adversely affects both customers outside the United States and customers within the United States, but the adverse foreign effect is independent of any adverse domestic effect. In these circumstances, we find that the FTAIA exception does not apply (and thus the Sherman Act does not apply) for two main reasons.

First, this Court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations. See, e. g., McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, 20-22 (1963) (application of National Labor Relations Act to foreign-flag vessels); Romero v. International Terminal Operating Co., 358 U. S. 354, 382-383 (1959) (application of Jones Act in maritime case); Lauritzen v. Larsen, 345 U. S. 571, 578 (1953) (same). This rule of construction reflects principles of customary international law — law that (we must assume) Congress ordinarily seeks to follow. See Restatement (Third) of Foreign Relations Law of the United States §§403(1), 403(2) (1986) (hereinafter Restatement) (limiting the unreasonable exercise of prescriptive jurisdiction with respect to a person or activity having connections with another State); Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804) (“[A]n act of congress ought never to be construed to violate the law of nations if any other possible construction remains”); Hartford Fire Ins. Co. v. California, 509 U. S. 764, 817 (1993) (Scalia, J., dissenting) (identifying rule of construction as derived from the principle of “ ‘prescriptive comity’ ”).

This rule of statutory construction cautions courts to assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws. It thereby helps the potentially conflicting laws of different nations work together in harmony — a harmony particularly needed in today’s highly interdependent commercial world.

No one denies that America’s antitrust laws, when applied to foreign conduct, can interfere with a foreign nation’s ability independently to regulate its own commercial affairs. But our courts have long held that application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused. See United States v. Aluminum Co. of America, 148 F. 2d 416, 443-444 (CA2 1945) (L. Hand, J.); 1 P. Areeda & D. Turner, Antitrust Law ¶ 236 (1978).

But why is it reasonable to apply those laws to foreign conduct insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiff’s claim? Like the former case, application of those laws creates a serious risk of interference with a foreign nation’s ability independently to regulate its own commercial affairs. But, unlike the former case, the justification for that interference seems insubstantial. See Restatement §403(2) (determining reasonableness on basis of such factors as connections with regulating nation, harm to that nation’s interests, extent to which other nations regulate, and the potential for conflict). Why should American law supplant, for example, Canada’s or Great Britain’s or Japan’s own determination about how best to protect Canadian or British or Japanese customers from anticompetitive conduct engaged in significant part by Canadian or British or Japanese or other foreign companies?

We recognize that principles of comity provide Congress greater leeway when it seeks to control through legislation the actions of American companies, see Restatement § 402; and some of the anticompetitive price-fixing conduct alleged here took place in America. But the higher foreign prices of which the foreign plaintiffs here complain are not the consequence of any domestic anticompetitive conduct that Congress sought to forbid, for Congress did not seek to forbid any such conduct insofar as it is here relevant, i. e., insofar as it is intertwined with foreign conduct that causes independent foreign harm. Rather Congress sought to release domestic (and foreign) anticompetitive conduct from Sherman Act constraints when that conduct causes foreign harm. Congress, of course, did make an exception where that conduct also causes domestic harm. See House Report, at 13 (concerns about American firms’ participation in international cartels addressed through “domestic injury” exception). But any independent domestic harm the foreign conduct causes here has, by definition, little or nothing to do with the matter.

We thus repeat the basic question: Why is it reasonable to apply this law to conduct that is significantly foreign insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiffs claim? We can find no good answer to the question.

The Areeda and Hovenkamp treatise notes that under the Court of Appeals’ interpretation of the statute

“a Malaysian customer could . . . maintain an action under United States law in a United States court against its own Malaysian supplier, another cartel member, simply by noting that unnamed third parties injured [in the United States] by the American [cartel member’s] conduct would also have a cause of action. Effectively, the United States courts would provide worldwide subject matter jurisdiction to any foreign suitor wishing to sue its own local supplier, but unhappy with its own sovereign’s provisions for private antitrust enforcement, provided that a different plaintiff had a cause of action against a different firm for injuries that were within U. S. [other-than-import] commerce. It does not seem excessively rigid to infer that Congress would not have intended that result.” P. Areeda & H. Hovenkamp, Antitrust Law ¶ 273, pp. 51-52 (Supp. 2003).

We agree with the comment. We can find no convincing justification for the extension of the Sherman Act’s scope that it describes.

Respondents reply that many nations have adopted antitrust laws similar to our own, to the point where the practical likelihood of interference with the relevant interests of other nations is minimal. Leaving price fixing to the side, however, this Court has found to the contrary. See, e. g., Hartford Fire, 509 U. S., at 797-799 (noting that the alleged conduct in the London reinsurance market, while illegal under United States antitrust laws, was assumed to be perfectly consistent with British law and policy); see also, e. g., 2 W. Fugate, Foreign Commerce and the Antitrust Laws §16.6 (5th ed. 1996) (noting differences between European Union and United States law on vertical restraints).

Regardless, even where nations agree about primary conduct, say, price fixing, they disagree dramatically about appropriate remedies. The application, for example, of American private treble-damages remedies to anticompetitive conduct taking place abroad has generated considerable controversy. See, e. g., 2 ABA Section of Antitrust Law, Antitrust Law Developments 1208-1209 (5th ed. 2002). And several foreign nations have filed briefs here arguing that to apply our remedies would unjustifiably permit their citizens to bypass their own less generous remedial schemes, thereby upsetting a balance of competing considerations that their own domestic antitrust laws embody. E. g., Brief for Government of Federal Republic of Germany et al. as Amici Curiae 2 (setting forth German interest “in seeing that German companies are not subject to the extraterritorial reach of the United States’ antitrust laws by private foreign plaintiffs— whose injuries were sustained in transactions entirely outside United States commerce — seeking treble damages in private lawsuits against German companies”); Brief for Government of Canada as Amicus Curiae 14 (“treble damages remedy would supersede” Canada’s “national policy decision”); Brief for Government of Japan as Amicus Curiae 10 (finding “particularly troublesome” the potential “interference] with Japanese governmental regulation of the Japanese market”).

These briefs add that a decision permitting independently injured foreign plaintiffs to pursue private treble-damages remedies would undermine foreign nations’ own antitrust enforcement policies by diminishing foreign firms’ incentive to cooperate with antitrust authorities in return for prosecuto-rial amnesty. Brief for Government of Federal Republic of Germany et al. as Amici Curiae 28-30; Brief for Government of Canada as Amicus Curiae 11-14. See also Brief for United States as Amicus Curiae 19-21 (arguing the same in respect to American antitrust enforcement).

Respondents alternatively argue that comity does not demand an interpretation of the FTAIA that would exclude independent foreign injury cases across the board. Rather, courts can take (and sometimes have taken) account of comity considerations case by case, abstaining where comity considerations so dictate. Cf., e.g., Hartford Fire, supra, at 797, n. 24; United States v. Nippon Paper Industries Co., 109 F. 3d 1, 8 (CA1 1997); Mannington Mills, Inc. v. Congoleum Corp., 595 F. 2d 1287, 1294-1295 (CA3 1979).

In our view, however, this approach is too complex to prove workable. The Sherman Act covers many different kinds of anticompetitive agreements. Courts would have to examine how foreign law, compared with American law, treats not only price fixing but also, say, information-sharing agreements, patent-licensing price conditions, territorial product resale limitations, and various forms of joint venture, in respect to both primary conduct and remedy. The legally and economically technical nature of that enterprise means lengthier proceedings, appeals, and more proceedings — to the point where procedural costs and delays could themselves threaten interference with a foreign nation’s ability to maintain the integrity of its own antitrust enforcement system. Even in this relatively simple price-fixing case, for example, competing briefs tell us (1) that potential treble-damages liability would help enforce widespread anti-price-fixing norms (through added deterrence) and (2) the opposite, namely, that such liability would hinder antitrust enforcement (by reducing incentives to enter amnesty programs). Compare, e. g., Brief for Certain Professors of Economics as Amici Curiae 2-4 with Brief for United States as Amicus Curiae 19-21. How could a court seriously interested in resolving so empirical a matter — a matter potentially related to impact on foreign interests — do so simply and expeditiously?

We conclude that principles of prescriptive comity counsel against the Court of Appeals’ interpretation of the FTAIA. Where foreign anticompetitive conduct plays a significant role and where foreign injury is independent of domestic effects, Congress might have hoped that America’s antitrust laws, so fundamental a component of our own economic system, would commend themselves to other nations as well. But, if America’s antitrust policies could not win their own way in the international marketplace for such ideas, Congress, we must assume, would not have tried to impose them, in an act of legal imperialism, through legislative fiat.

Second, the FTAIA’s language and history suggest that Congress designed the FTAIA to clarify, perhaps to limit, but not to expand in any significant way, the Sherman Act’s scope as applied to foreign commerce. See House Report, at 2-3. And we have found no significant indication that at the time Congress wrote this statute courts would have thought the Sherman Act applicable in these circumstances.

The Solicitor General and petitioners tell us that they have found no case in which any court applied the Sherman Act to redress foreign injury in such circumstances. Tr. of Oral Arg. 21; Brief for United States as Amicus Curiae 13; Brief for Petitioners 13; see also Den Norske, 241 F. 3d, at 429 (“[W]e have found no case in which jurisdiction was found in a case like this — where a foreign plaintiff is injured in a foreign market with no injuries arising from the anticompeti-tive effect on a United States market”). And respondents themselves apparently conceded as much at a May 23, 2001, hearing before the District Court below. 2001 WL 761360, at *4.

Nevertheless, respondents now have called to our attention six cases, three decided by this Court and three decided by lower courts. In the first three cases the defendants included both American companies and foreign companies jointly engaged in anticompetitive behavior having both foreign and domestic effects. See Timken Roller Bearing Co. v. United States, 341 U. S. 593, 595 (1951) (agreements among American, British, and French corporations to eliminate competition in the manufacture and sale of antifriction bearings in world, including United States, markets); United States v. National Lead Co., 332 U. S. 319, 325-328 (1947) (international cartels with American and foreign members, restraining international commerce, including United States commerce, in titanium pigments); United States v. American Tobacco Co., 221 U. S. 106, 171-172 (1911) (American tobacco corporations agreed in England with British company to divide world markets). In all three cases the plaintiff sought relief, including relief that might have helped to protect those injured abroad.

In all three cases, however, the plaintiff was the Government of the United States. A Government plaintiff, unlike a private plaintiff, must seek to obtain the relief necessary to protect the public from further anticompetitive conduct and to redress anticompetitive harm. And a Government plaintiff has legal authority broad enough to allow it to carry out this mission. 15 U. S. C. § 25; see also, e. g., United States v. E. I. du Pont de Nemours & Co., 366 U. S. 316, 334 (1961) (“[I]t is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor”). Private plaintiffs, by way of contrast, are far less likely to be able to secure broad relief. See California v. American Stores Co., 495 U. S. 271, 295 (1990) (“Our conclusion that a district court has the power to order divestiture in appropriate cases brought [by private plaintiffs] does not, of course, mean that such power should be exercised in every situation in which the Government would be entitled to such relief”); 2 P. Areeda, H. Hovenkamp, & R. Blair, Antitrust Law ¶¶ 303d-303e, pp. 40-45 (2d ed. 2000) (distinguishing between private and government suits in terms of availability, public interest motives, and remedial scope); Griffin, Extraterritoriality in U. S. and EU Antitrust Enforcement, 67 Antitrust L. J. 159, 194 (1999) (“[P]rivate plaintiffs often are unwilling to exercise the degree of self-restraint and consideration of foreign governmental sensibilities generally exercised by the U. S. Government”). This difference means that the Government’s ability, in these three cases, to obtain relief helpful to those injured abroad tells us little or nothing about whether this Court would have awarded similar relief at the request of private plaintiffs.

Neither did the Court focus explicitly in its opinions on a claim that the remedies sought to cure only independently caused foreign harm. Thus the three cases tell us even less about whether this Court then thought that foreign private plaintiffs could have obtained foreign relief based solely upon such independently caused foreign injury.

Respondents also refer to three lower court cases brought by private plaintiffs. In the first, Industria Siciliana Asfalti, Bitumi, S. p. A. v. Exxon Research & Engineering Co., No. 75 Civ. 5828-CSH, 1977 WL 1353 (SDNY, Jan. 18, 1977), a District Court permitted an Italian firm to proceed against an American, firm with a Sherman Act claim based upon a purely foreign injury, i. e., an injury suffered in Italy. The court made clear, however, that the foreign injury was “inex tricably bound up with . . . domestic restraints of trade,” and that the plaintiff “was injured ... by reason of an alleged restraint of our domestic trade,” id., at *11, *12 (emphasis added), i. e., the foreign injury was dependent upon, not independent of domestic harm. See Part VI, infra.

In the second case, Dominicus Americana' Bohio v. Gulf & Western Industries, Inc., 473 F. Supp. 680 (SDNY 1979), a District Court permitted Dominican and American firms to proceed against a competing American firm and the Dominican Tourist Information Center with a Sherman Act claim based upon injury apparently suffered in the Dominican Republic. The court, in finding the Sherman Act applicable, weighed several different factors, including the participation of American firms in the unlawful conduct, the partly domestic nature of both conduct and harm (to American tourists, a kind of “export”), and the fact that the domestic harm depended in part upon the foreign injury. Id., at 688. The' court did not separately analyze the legal problem before it in terms of independently caused foreign injury. Its opinion simply does not discuss the matter. It consequently cannot be taken as significant support for application of the Sherman Act here.

The third case, Hunt v. Mobil Oil Corp., 550 F. 2d 68, 72 (CA2 1977), involved a claim by Hunt, an independent oil producer with reserves in Libya, that other major oil producers in Libya and the Persian Gulf (the “seven majors”) had conspired in New York and elsewhere to make it more difficult for Hunt to reach agreement with the Libyan Government on production terms and thereby eliminate him as a competitor. The case can be seen as involving a primarily foreign conspiracy designed to bring about foreign injury in Libya. But, as in Dominicus, the court nowhere considered the problem of independently caused foreign harm. Rather, the case was about the “act of state” doctrine, and the sole discussion of Sherman Act applicability — one brief paragraph — refers to other matters. 550 F. 2d, at 72, and n. 2. We do not see how Congress could have taken this case as significant support for the proposition that the Sherman Act applies in present circumstances.

The upshot is that no pre-1982 case provides significant authority for application of the Sherman Act in the circumstances we here assume. Indeed, a leading contemporaneous lower court case contains language suggesting the contrary. See Timberlane Lumber Co. v. Bank of America, N. T. & S. A., 549 F. 2d 597, 613 (CA9 1976) (insisting that the foreign conduct’s domestic effect be “sufficiently large to present a cognizable injury to the plaintiffs” (emphasis added)).

Taken together, these two sets of considerations, the one derived from comity and the other reflecting history, convince us that Congress would not have intended the FTAIA’s exception to bring independently caused foreign injury within the Sherman Act’s reach.

V

Respondents point to several considerations that point the other way. For one thing, the FTAIA’s language speaks in terms of the Sherman Act’s applicability to certain kinds of conduct. The FTAIA says that the Sherman Act applies to foreign “conduct” with a certain kind of harmful domestic effect. Why isn’t that the end of the matter? How can the Sherman Act both apply to the conduct when one person sues but not apply to the same conduct when another person sues? The question of who can or cannot sue is a matter for other statutes (namely, the Clayton Act) to determine.

Moreover, the exception says that it applies if the conduct’s domestic effect gives rise to “a claim,” not to “the plaintiff’s claim” or “the claim at issue.” 15 U. S. C. §6a(2) (emphases added). The alleged conduct here did have domestic effects, and those effects were harmful enough to give rise to “a” claim. Respondents concede that this claim is not their own claim; it is someone else’s claim. But, linguistically speaking, they say, that is beside the point. Nor did Congress place the relevant words “gives rise to a claim” in the FTAIA to suggest any geographical limitation; rather it did so for a here neutral reason, namely, in order to make clear that the domestic effect must be an adverse (as opposed to a beneficial) effect. See House Report, at 11 (citing National Bank of Canada v. Interbank Card Assn., 666 F. 2d 6, 8 (CA2 1981)).

Despite their linguistic logic, these arguments are not convincing. Linguistically speaking; a statute can apply and not apply to the same conduct, depending upon other circumstances; and those other circumstances may include the nature of the lawsuit (or of the related underlying harm). It also makes linguistic sense to read the words “a claim” as if they refer to the “plaintiff’s claim” or “the claim at issue.”

At most, respondents’ linguistic arguments might show that respondents’ reading is the more natural reading of the statutory language. But those arguments do not show that we must accept that reading. And that is the critical point. The considerations previously mentioned — those of comity and history — make clear that the respondents’ reading is not consistent with the FTAIA’s basic intent. If the statute’s language reasonably permits an interpretation consistent with that intent, we should adopt it. And, for the reasons stated, we believe that the statute’s language permits the reading that we give it.

Finally, respondents point to policy considerations, namely, that application of the Sherman Act in present circumstances will (through increased deterrence) help protect Americans against foreign-caused anticompetitive injury. Petitioners and supporting enforcement-agency amici, however, have made important experience-backed arguments (based upon amnesty-seeking incentives) to the contrary. We cannot say whether, on balance, respondents’ side of this empirically based argument or the enforcement agencies’ side is correct. But we can say that the answer to the dispute is neither clear enough, nor of such likely empirical significance, that it could overcome the considerations we have previously discussed and change our conclusion.

For these reasons, we conclude that petitioners’ reading of the statute’s language is correct. That reading furthers the statute’s basic purposes, it properly reflects considerations of comity, and it is consistent with Sherman Act history.

VI

We have assumed that the anticompetitive conduct here independently caused foreign injury; that is, the conduct’s domestic effects did not help to bring about that foreign injury. Respondents argue, in the alternative, that the foreign injury was not independent. Rather, they say, the anti-competitive conduct’s domestic effects were linked to that foreign harm. Respondents contend that, because vitamins are fungible and readily transportable, without an adverse domestic effect (i. e., higher prices in the United States), the sellers could not have maintained their international price-fixing arrangement and respondents would not have suffered their foreign injury. They add that this “but for” condition is sufficient to bring the price-fixing conduct within the scope of the FTAIA’s exception.

The Court of Appeals, however, did not address this argument, 315 F. 3d, at 341, and, for that reason, neither shall we. Respondents remain free to ask the Court of Appeals to consider the claim. The Court of Appeals may determine whether respondents properly preserved the argument, and, if so, it may consider it and decide the related claim.

For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice O’Connor took no part in the consideration or decision of this case.

Justice Scalia,

with whom Justice Thomas joins, concurring in the judgment.

I concur in the judgment of the Court because the language of the statute is readily susceptible of the interpretation the Court provides and because only that interpretation is consistent with the principle that statutes should be read in accord with the customary deference to the application of foreign countries’ laws within their own territories.