Can an employee you never fired sue you for a discriminatory termination? Oddly enough, yes.
Under some circumstances, an employee can quit and claim she was “constructively discharged.” To do so, she has to show conditions at work were intolerable.
And now a federal court has concluded that cutting someone’s pay can be an intolerable condition.
Recent case: Huda Saaidi’s employer counsels families with college-bound children about financial aid. She spent weekends at events nationwide selling those services. She was paid with draws against commissions.
Saaidi complained about co-worker sexual harassment. Then, she claimed, she began being excluded from training and sales events. That, in turn, led to lower commissions. She quit, alleging she had no choice but to do so because her decreased wages made her working conditions intolerable.
The court said she had a point, concluding that declining wages might make someone’s working conditions intolerable enough to justify quitting. The court added that—if it causes lower pay—being excluded from activities may be retaliation for reporting alleged sexual harassment. (Saaidi v. CFAS, et al., No. 1:08-CV-1096, ND NY, 2010)
Final note: The employer in this case had already investigated the sexual harassment complaint and couldn’t come to a clear decision on who had harassed whom. But that didn’t mean it shouldn’t have looked out for possible retaliation. Always check back with employees to see if they have any complaints about retaliation, even if you were unable to verify the original harassment allegations as true.
Remember, employees don’t have to be right about their original complaints. The simple act of reporting alleged harassment or discrimination is a protected activity unless it is obviously clear the allegations were false and unreasonable.
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