Think you can avoid a discrimination lawsuit by making life so miserable that an employee quits, making it unnecessary to fire her? Don’t bet on it.
You could still face a lawsuit, especially if efforts to drive out the employee amount to harassment, discrimination or hostility based on a protected characteristic.
Recent case: Priscilla, who is black, quit her job at DSW Warehouse. She claimed she had no choice but to leave the shoe retailer because she thought the work environment was hostile and discriminatory.
The problem began when she was promised a promotion to store manager but was passed over in favor of a white applicant. That’s when she went to HR and was allegedly informed that the company wanted to cultivate an image that included a certain “look.” Priscilla took that to mean that the company wanted more white employees to attract customers.
Priscilla then began experiencing what she described as retaliation. For example, her white supervisor accused her of closing the store doors early; store video cameras showed she hadn’t done anything wrong. Plus, someone reported to Priscilla that the store manager referred to her as “that f***ing black bitch.”
Priscilla sued for harassment and wrongful discharge, arguing that the conditions were so intolerable she had to quit. DSW argued that a reasonable employee wouldn’t have resigned over the comment and the other incidents.
But the court said a jury should decide if a reasonable employee would have quit under the circumstances. If so, Priscilla will be able to sue, even if she was the one who quit. (Fountain v. DSW Warehouse, No. 11-CV-0246, SD CA, 2012)
Final note: Trying to get someone to quit almost always backfires. Either fire the employee for a legitimate reason or work with her to improve performance and fix problems.
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