Some companies mistakenly believe that offering an employee the option of quitting or being fired can save them from a later lawsuit. That isn’t always the case even if the employee decides to resign.
In fact, an employee who quits to avoid being fired may have been “constructively discharged.” Then she can still sue as if she had actually been fired.
Recent case: Glenda Callan worked as a hospital nurse and often missed work. Her boss warned her about her attendance. But then Callan filed a sexual harassment complaint. She said a co-worker solicited sex from her and grabbed her from behind.
Callan’s attendance problems continued while the hospital investigated her complaints.
Finally, she was told she had the choice of resigning or being fired for attendance issues. She quit and sued anyway, alleging sexual harassment and retaliation.
The hospital said she had quit, so it wasn’t liable.
The court said her “quitting” wasn’t the end of the matter, but concluded that being forced to choose meant the resignation could be a constructive discharge. It refused to dismiss the lawsuit simply because she quit. (Callan v. Hopkins County Hospital, No. 4:08-CV-26, ED TX, 2009)
Final note: Callan, however, lost the case for two reasons. First, the court concluded that the hospital had taken quick action to end the harassment by investigating her claim and instituting sexual harassment training. Second, the court found that Callan was terminated for legitimate attendance problems, and not in retaliation for complaining about sexual harassment.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Courts reshaping the definition of 'Retaliation'
- Manager 'smirks' about employee's situation? That's not enough to justify a lawsuit
- Caution: 'Association discrimination' is new HR worry
- Build a firewall against Internet, e-mail liabilities