| Although in most states, at-will employees--those who work without an employment contract or collective bargaining agreement--can be fired by an employer for the slightest reason or in fact no reason at all, there are certain circumstances under which the termination of an at-will employee may be found to be wrongful under the law. One example of wrongful termination is a retaliatory firing after an employee reports an employer for a violation of state or federal law. Another type of wrongful termination is called constructive discharge. Constructive discharge occurs when an employer makes an employee's work conditions so intolerable that any reasonable employee in that situation would have no choice to quit and the employee does in fact resign his position.
In general, in order to find constructive discharge, a court will require that there was a change made by an employer to the employee's working conditions; that the resignation occurred within a reasonably short time after those changes, thus suggesting a cause and effect relationship between the change and the resignation; that the change was so intolerable that it would have caused any reasonable employee to have resigned; and that the change in working conditions was intentionally caused or intentionally allowed to continue. Types of changes in working environment that might constitute intolerable working conditions include discrimination, harassment, or an unreasonable demotion or transfer. Changes made for bona fide business reasons, whether or not intolerable to a particular employee for some reason, would not constitute grounds for a finding of constructive discharge. Nor do ordinary criticism or discipline of employees constitute discrimination or harassment that will enable an ensuing resignation to be characterized as wrongful discharge.
One prevalent type of workplace condition that can provide the basis for a constructive discharge claim is sexual harassment. With regard to claims of sexual harassment leading to constructive discharge, the United States Supreme Court has held that an employer may defend against a claim of constructive discharge by demonstrating that it had installed a readily accessible and effective procedure for reporting and resolving complaints of sexual harassment and that the employee did not avail herself or himself of that procedure. That defense cannot be asserted by an employer, however, if the employee resigns under conditions that make resignation a reasonable response to an employer-sanctioned adverse action that officially changes the employee's employment status or working conditions. Although an employer is strictly liable--meaning no defense whatever will be availing--for sexual harassment that results in a tangible employment action such as a firing, the Supreme Court has also held that a constructive discharge does not constitute such "tangible employment action." Accordingly, an employer in a sexual harassment action that involved an alleged constructive discharge may put on a defense to the harassment action, for example, that the employee did not avail her or himself of the available company procedures for addressing sexual harassment claims. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |