Can you pass the constructive discharge test? Beware lawsuits from employees who quit — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Can you pass the constructive discharge test? Beware lawsuits from employees who quit

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in Employment Law,Firing,Human Resources

Some supervisors wrongly assume that employees who quit can’t sue because they weren’t fired.

Too often, that makes them think the best way to get rid of troublemakers who constantly claim discrimination or harassment is to drive them out. That’s not true. An employee who finds conditions so intolerable that he or she has no choice but to quit can sue and allege termination.

Fortunately, courts expect employees to have relatively thick skins. Workplaces will never be perfect and courts don’t expect them to be.

On the other hand, courts don’t want to encourage employers to treat employees badly in the hopes they will quit in frustration rather than wait to be terminated.

Recent case: Laurence Phifer worked as a police officer for the city of Rocky Mount. He recommended a woman he knew to fill a position within the police department.

After she was hired, Phifer claimed the police chief harassed her and coerced her into a sexual relationship. Phifer said that soon after he voiced his objections to the alleged harassment, the chief began treating him poorly in hopes he would quit. And Phifer did quit after he got another job offer.

He sued, alleging he had been retaliated against because he complained about the chief. The city reminded the court he quit voluntarily.

In court, Phifer argued he had been constructively discharged and had no choice but to find another position. As evidence, he said he had been falsely accused of speeding, denied a requested shift change he needed in order to pursue adopting a child, reprimanded for entering a house without backup and been told “shut your damn mouth” during a discussion.

The court dismissed the case, reasoning that none of those incidents made working conditions so intolerable that he had to quit. (Phifer v. City of Rocky Mount, No. 5:08-CV-292, ED NC, 2010)

Final note: Could any of these incidents have been retaliation on their own? Phifer’s attorneys apparently didn’t argue that they were. However, remember that retaliation is anything that would dissuade a hypothetically reasonable employee from complaining in the first place. In this case, the question would then be whether things like being denied a needed shift change would have made a reasonable employee stay quiet about the alleged affair. Some courts have held that a transfer to a less desirable shift or a move to an office with no equipment and little work is retaliation.

It all depends on that hypothetical reasonable employee.

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