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More reason to stop harassment: Even ‘resignees’ can sue

by on
in Discrimination and Harassment,Firing,Human Resources

Issue: Whether employees who resign have the same right to file harassment lawsuits as those who are fired.

Risk/benefit: A new Supreme Court ruling says "Yes," quitters can sue. But the ruling also gives your organization a way to defend itself.

Advice: Investigate any harassment complaint, even those by employees who resign.

Ever heard the saying "Quitters never win and winners never quit?" Well, the Supreme Court just said that's not necessarily true. And that means your organizations needs to pay even more attention to its anti-harassment efforts.

The high court ruled that employees who suffer a "constructive discharge", meaning they felt forced to quit because their working conditions became intolerable, have the same right to sue for harassment as people who are fired. (Still, the ruling presents a mixed bag because, as you'll see, it does provide a way for employers to defend themselves.)

What should your organization do?

Most important, don't make the mistake of assuming that your obligation to investigate a harassment complaint ends when the victimized employee quits.

If someone resigns and says it's because of harassment, you should immediately launch a thorough investigation. Document your probe, discipline the harasser (if appropriate) and notify the ex-employee of the investigation's results. If you find that the complaint is legitimate, offer the victimized worker his or her job back along with an assurance that you intend to provide a workplace free of harassment.

The case of Nancy Drew

Police dispatcher Nancy Drew Suders resigned from her job, saying she felt forced to quit because of daily harassment. She asserted that male supervisors constantly discussed sex and made obscene gestures in her presence. She quit and sued for sexual harassment. The police department argued that she couldn't sue because she had resigned, not been fired. But the high court let her case go to trial.

Lower courts had always been split over whether a person who quits (rather than is fired) can still sue for sexual harassment. But the Supreme Court has now made the final call: quitters can win in court, if they can prove their case.

Can your organization defend itself against such "constructive discharge" claims? Maybe.

Your organization can defend itself in court by showing that it had an effective anti-harassment policy and procedures in place, plus that the victimized employee failed to take advantage of the organization's complaint process.

Key point: You will not, however, be able to use this defense if the harassing supervisor engaged in an "official act" (such as ordering a demotion or a pay cut) that contributed to the employee's resignation. So if a forced resignation is paired with an "official act," your organization is toast: It's automatically liable, without any defense, as long as the case's facts are proven. (Pennsylvania State Police v. Suders, No. 03-95)

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