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Don’t believe it: Employee facing discipline can’t quit and then claim constructive discharge

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in Discrimination and Harassment,Firing,Human Resources

Before they can successfully sue, employees generally must show that they were harmed by their employer’s alleged discrimination. Harm can include demotion, discharge or other adverse events.

Some employees quit and then argue that they had no choice but to do so. This is known as “constructive discharge.” Such a claim can succeed in court if the employee can show that working conditions became so intolerable that quitting was the only reasonable response.

But an employee can’t quit and claim constructive discharge just because he’s facing potential disciplinary action.

Recent case: Kenneth Swearnigen-El, a black man, worked as a correctional officer in the women’s wing of Cook County Jail. When he was accused of having sex with an inmate and faced internal disciplinary action, he quit.

Then he sued, alleging constructive discharge and race discrimination.

The court threw out Swearnigen-El’s case. It said he didn’t have enough justification for quitting pending the criminal case and internal disciplinary process.

Merely facing the possibility that one might be fired isn’t enough justification to quit.

Otherwise, everyone facing serious disciplinary action would be able to quit and sue before the employer had a chance to collect all the information it needed to make a careful and considered decision.

That would provide a perverse incentive for employees to quit before being fired. (Swearnigen-El v. Cook County Sheriff’s Department, No. 09-2709, 7th Cir., 2010)

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