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‘Offering’ chance to quit may still be constructive discharge

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in Discrimination and Harassment,Employment Law,Firing,Human Resources,Leaders & Managers,Management Training

Employers commonly give employees a chance to resign rather than be fired. And employers often believe that as long as they get employees’ signatures on the “voluntary” resignation letters, they’re in the clear.

That’s simply not true. Employees who claim they were essentially forced out for illegal reasons, such as retaliation, can still sue and explain away an allegedly deliberate resignation. Saying “I quit” simply isn’t enough to rule out a future claim of constructive discharge.

Recent case: Lisa Steele went to work for the Youthful Offender Parole Board. Then, shortly after beginning work, she told a political appointee that she often appeared in bikini competitions. The appointee then attended one event and later tried to kiss Steele. She averted her head, but said she wasn’t offended.

She did, however, report the incident to her supervisor. The supervisor then reported the incident up the chain of command. That led to alleged threats that the supervisor could lose her job for rocking the boat. The supervisor filed a Fair Employment and Housing Act claim.

Meanwhile, Steele’s supervisors began criticizing her performance. Eventually, Steele was offered a chance to resign, which she did. Steele sued, alleging she had been targeted for punishment because she might be a witness in her supervisor’s lawsuit.

A jury agreed, finding that the agency retaliated against Steele for engaging in protected activity because she was a potential witness in a sexual harassment and retaliation case.

The Court of Appeal refused to overturn the decision, reasoning that the agency was engaging in “damage control” after learning about the kiss, and that management wanted her out before investigators had a chance to question her. (Steele v. Youthful Offender Parole Board, No. C053553, Court of Appeal of California, 2008)

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