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HR Matters E-Tips

 
       

THIS WEEK'S E-TIP

When Is A Voluntary Quit A Constructive Discharge? Q&A

 
   
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Editor's Note: These question and answer HR Matters E-Tips articles are taken from real questions submitted by our subscribers, a unique feature of the HR Matters Tools and Resource Center online service. See how it works.
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If an employee chooses to quit, does she still have grounds to sue? Maybe. If she can show she was forced to quit, she may be able to claim constructive discharge and discrimination.

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Q: We have an employee who quit voluntarily last week. She did not give two weeks’ notice as we recommend, and she did not indicate that she had a reason for leaving other than “personal reasons.” Now, we have heard through the grapevine that she might be filing a discrimination claim. Should we be concerned? We still have an opportunity to talk to her in a scheduled exit interview.  
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A: Here’s a fact that you may not have considered. Even if an employee appears to resign voluntarily, your organization could face a discrimination claim. A constructive discharge occurs when an employee feels compelled to resign because the employer has made working conditions intolerable. Attorneys often include this claim as part of a discrimination complaint. For example, a female employee may resign because her employer was unresponsive to her harassment complaint and then allege constructive discharge as part of a harassment claim.

(Download free Termination of Employment model policy including HR best practices and legal background.)

As a practical matter, constructive discharge claims are fairly difficult to prove. Employees must show that their working conditions were in fact intolerable. Some courts also require the complainant to give their employer an opportunity to correct the conditions prior to resignation. A review of court decisions helps explain when constructive discharge occurs and sheds light on how you can prevent these claims.

To prove constructive discharge, courts typically require an employee to show that the employer deliberately created intolerable working conditions with the intent of forcing resignation. Courts assess the intolerability of working conditions by considering whether a reasonable person in the employee’s position would have felt compelled to resign.

For example, in Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099 (6th Cir. 2008), a constructive discharge claim was allowed to proceed to trial because there was evidence that the employer knew the employee’s working conditions would become intolerable to a reasonable person when it denied her request to sit on a stool while working to accommodate her disability, something it had allowed before, and refused to discuss the issue with her or consider alternatives.
 
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Similarly, in Saroli v. Automation & Modular Components, Inc., 405 F.3d 446 (6th Cir. 2005), an employee was allowed to present her constructive discharge case to a jury because she had evidence that she resigned her job after her employer made it very difficult for her to take pregnancy leave. Evidence included that the company’s owner indicated his displeasure with her need for maternity leave, his belief that maternity leave should be treated differently from other medical leaves, and his disparaging views toward women. Further, the owner told her if she returned from leave, she could either resign or be demoted.

In contrast, in Levenstein v. Salafsky, 414 F.3d 767 (7th Cir. 2005), the court denied the constructive discharge claim of a university professor who was put on paid leave with a temporary, though unsatisfying, reassignment pending investigation of sexual harassment allegations against him. He then resigned rather than wait for the conclusion of the university's reasonable prescribed due process procedures. The court found that however distasteful his temporary situation was, his working conditions had not become so intolerable that a reasonable employee in his position would have felt compelled to resign.
 
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Fortunately, you may be able to prevent constructive discharge claims by taking one fairly simple step. You should review all employee notices of resignation to make sure that they are not actually constructive discharges that could result in liability under discrimination and anti-retaliation laws.

So, with this employee, you should examine her personnel file for recent demotions, changes in job duties, pay cuts, any formal complaints filed, and other adverse employment actions that may have contributed to the employee’s decision to quit. In addition, you should discuss the reasons for resignation with the employee no later than in the exit interview. A formal exit interview process is your last chance to ferret out problems and gives you a final opportunity to address the “real” reason for a resignation.

(Download free Termination of Employment model policy including HR best practices and legal background.)
 
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Content for your HR Matters E-Tips newsletter is developed from our
flagship publication, the HR Matters Tools and Resource Center, featuring the Personnel Policy Manual System (PPMS). See how it works.

Subscribers to the PPMS and HR Policy Answers on CD can find information on constructive discharge in Termination of Employment, Chapter 211, note 19.

If you don't have access to the PPMS, but would like to have a free, no-
obligation 14-day review, go to: www.ppspublishers.com/ppm-ez.htm

Or just give us a call at 1-800-437-3735.

 
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YOU CAN TRUST PPS
Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.

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