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Jun 05, 2017

I quit! How to avoid constructive discharge

By: Allison Mann

The Issue:

Employees quit for a variety of reasons. Some of those reasons are harmless: I am moving. I got another job. I am retiring. Others may be symptoms of workplace problems: I do not like my supervisor. I am not getting paid enough. I am sick of this job. And others – though few – may expose employers to serious liability: My boss berates my gender. Coworkers make jokes about my race. I am chided for my religion.

The problem is that sometimes employers are not always aware of what their employees are doing—even when they should be. In some cases, there may have been no way for the employer to know. But employers can still be held liable by the actions of their employees. It is no different in cases where an employee resigns.

Constructive discharge occurs when an employee resigns as the result of a hostile working environment. Finding out why an employee resigns, or is planning to resign, can be the first step in an employer’s defense against a hostile work environment charge. Notably, a constructive discharge.

The Law:

In Pennsylvania State Police v Suders, the Supreme Court addressed when an employer may assert an affirmative defense to a claim of hostile work environment, which leads to constructive discharge. 124 S. Ct. 2342 (2004). The answer to this question depends on whether an “official act” leads to the constructive discharge. Id. An affirmative defense exists when no “tangible employment action” occurs. A tangible employment action is found whenever there is a significant change in employment status. Examples may include failure to promote, job reassignment, a reduction of or an increase in job duties, and termination. These are all “official” acts.

In the absence of a tangible employment action, an employer may raise an affirmative defense to liability comprised of two elements: (1) that the employer exercised reasonable care to prevent and correct the allegedly hostile work environment, and (2) that the employee failed to take advantage of either. Burlington Indus. v. Ellerth, 524 US 742, 745 (1998); accord Faragher v. City of Boca Raton, 524 US 775, 778 (1998). Thus, this defense is generally available when the acts that caused the constructive discharge are comprised of “unofficial” conduct. Suders, 124 S. Ct. at 2355.

This defense is important in constructive discharge cases, because in many instances, the decisionmakers are not aware of the conduct that creates a hostile work environment. This defense is designed to protect employers in those situations. However, be cautious. Ignorance of a hostile work environment does not always preclude liability, and almost always reflects negatively on the employer.

The Takeaway:

Acting to prevent a claim of constructive discharge is an important step in preventing claims of hostile work environment. So, an employer should have an action plan for when an employee quits.

The first, and probably most obvious step is merely asking your employee why are they are leaving the company, and then documenting that answer. An exit interview is the perfect opportunity to pose this question. This is especially effective in situations where the employer was not aware that a problem exists. In the event the resigning employee complains of a hostile work environment, it is possible the situation may still be resolved with the resigning employee. At the very least, an employer may rectify the situation after the employee is gone. This is less desirable, as it is generally better for both parties to resolve the issue and continue the working relationship.

Additionally, an employer may ask that the resigning employee submit a letter indicating that they are resigning, and the reason for their resignation. Letters of resignation can help defend an employer in the event that the employee asserts a different reason for their resignation in the future.

An employer may want to consider sending a letter to the former employee confirming resignation in the event that the employee refuses to put their reason in writing. For example: On X day, you verbally resigned from your position as X with Company Y. This letter is to confirm your resignation. Please note, that this response is not always appropriate, and professional advice should be sought before taking this action.

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Reprinted with permission from an article submitted for publication in the June, 2017 Southwest Area Human Resource Association newsletter.