Employees who believe they are enduring unbearable harassment may feel they have no choice but to resign. If that happens, they may be able to sue their employers for constructive discharge. But employers can mitigate that danger by making sure the employee understands that
Recent case: Debra Anda worked as a furniture salesperson for several years. Because she had received a copy of the company’s discrimination and open-door policy, she knew how to report harassment. She complained that a co-worker was creating problems for her.
Her allegations were vague, though they included one incident in which the co-worker made a lewd comment about her rear end and suggested that Anda and another female employee might engage in sexual activity.
Although management said it would investigate, Anda gave notice that she was resigning. That’s when management urged Anda to be patient, assuring her it was taking her complaint seriously. Anda quit anyway, a week before the company fired the co-worker.
Anda sued, alleging constructive discharge. But the court dismissed Anda’s case because she didn’t give the company a fair opportunity to investigate and fix the problem. In addition, it was clear that the company didn’t want her to leave. (Anda v. Wickes Furniture Company, No. 07-1427, 8th Cir., 2008)
Final note: If the harasser is the victim’s co-worker, the employer isn’t liable for the harassment as long as it has a policy designed to prevent harassment and it had encouraged employees to report any harassment. Employees who unreasonably fail to take advantage of the reporting process can’t sue for sexual harassment.
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