The HR Specialist

In addition to providing plain-English HR advice that tells readers what they can do, not just what they can’t do, The HR Specialist shows HR professionals how to raise the profile of the HR function from the back office to the boardroom. Readers will find personal success by developing innovative solutions to general management problems.  Learn more about The HR Specialist and the two free reports you'll get when you subscribe...

Some supervisors try to skirt the whole issue of firing someone by resorting to constructive discharge. Their logic: If we make an employee’s time at work so intolerable, he or she will choose to resign. That’s an unwise strategy.

For starters, your organization becomes vulnerable to charges of discrimination by the targeted employee. After all, you specifically singled out the person for special treatment: the essence of discrimination. In such cases, a former employee will allege that the working conditions were so intolerable that a reasonable person would have been forced to resign.

In fact, some disgruntled employees may even be advised by plaintiff’s lawyers to “set up” their bosses so it looks as though conditions were intolerable. The worker then quits in disgust and files a lawsuit that adds a hostile work environment count to the complaint. And the court system is increasingly accepting constructive discharges as the equivalent of a firing, especially if it’s a supervisor who appears to be making life a nightmare for the worker.

Take, for example, the sexual harassment case won by a woman who claimed her boss regularly made lewd gestures, suggesting she perform a sexual act. The U.S. Supreme Court concluded the harassment was severe enough to compel her to quit without first going through the company’s internal complaint process. Burlington Industries v. Ellerth, 524 U.S. 742 (1998)

Courts view different kinds of personnel practices with varying degrees of disapproval. Practices that can get you into trouble include the following: improper demotion, improper transfer or failure to transfer, coercion into early retirement, discriminatory pay, and sexual or racial harassment or harassment based on age or disability.

To increase your company’s odds of prevailing in a constructive-discharge suit:

• Educate supervisors about the concept of constructive discharge. Often, supervisors will try to sidestep the unpleasant task of firing an employee outright by forcing the person to quit.
• If an employee is demoted, encourage him or her to accept the demotion. If you want the person out, your best bet is to document shoddy performance and fire him or her. If the employee files a complaint, investigate it. Encourage the person not to resign until you complete the investigation.
• When an employee resigns, have him or her provide a signed statement specifying the reason. Unless the person accuses you in the statement of unfair treatment, a court would be unlikely to side with him if he later charges you with constructive discharge. For example, an employee who resigned for a better job with another company couldn’t successfully claim he quit because you discriminated against him.