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Privacy & Monitoring Sexual Harassment Social Media Telecommuting Unions Volunteers Wage & Hour HR Central Home
Constructive Discharge
A “constructive discharge” exists when an employer creates intolerable working conditions, such as sexual harassment, that could compel a reasonable employee to quit, whether or not the employer specifically intended to force the employee’s resignation. Constructive discharge is the basis for a wrongful termination claim. To succeed in a constructive discharge claim, the employee must show that he/she left his/her job within a “reasonable amount of time” after the last act of discrimination or harassment. If the alleged victim, without good reason, bypasses an existing internal complaint procedure that he/she knew to be effective, particularly if the company took sufficient remedial action after investigating the victim’s complaint, neither the EEOC nor the courts would likely find constructive discharge.
In Pennsylvania State Police v. Suders, the U.S. Supreme Court ruled that the “Ellerth/Faragher” defense is available in constructive discharge cases in which employer-sanctioned, adverse employment action did not occur. The Ellerth/Faragher defense is available to you in hostile environment harassment cases. It allows you to show that you exercised reasonable care to prevent and promptly correct sexually harassing behavior and that the complaining employee failed to take advantage of available preventive or corrective opportunities.
In Pennsylvania State Police v. Suders, the U.S. Supreme Court ruled that the “Ellerth/Faragher” defense is available in constructive discharge cases in which employer-sanctioned, adverse employment action did not occur. The Ellerth/Faragher defense is available to you in hostile environment harassment cases. It allows you to show that you exercised reasonable care to prevent and promptly correct sexually harassing behavior and that the complaining employee failed to take advantage of available preventive or corrective opportunities.
Delay Negates Constructive Discharge. The Ninth Circuit Court of Appeals ruled that a female employee who complained of sexual harassment to her employer did not suffer a constructive discharge when she resigned months after the harassment ceased and after the employer disciplined the offenders.
The evidence in Montero v. AGCO Corp. showed that by the time the employee resigned, she was no longer subject to intolerable working conditions. The employee testified that her supervisor’s sexually harassing behavior ceased three to four months before she resigned. Additionally, the employee did not resign until after the company fired and replaced one of the harassers and reprimanded two others. Moreover, the court said, there was no reason to believe that the new (female) manager would not stop further harassment from occurring. After her complaint resulted in the firing of one supervisor and the disciplining of another, the employee knew that the company would take any other complaint seriously.
Given those considerations, the employee was not constructively discharged because no reasonable person in the employee’s position would have felt forced to quit when she did.
The evidence in Montero v. AGCO Corp. showed that by the time the employee resigned, she was no longer subject to intolerable working conditions. The employee testified that her supervisor’s sexually harassing behavior ceased three to four months before she resigned. Additionally, the employee did not resign until after the company fired and replaced one of the harassers and reprimanded two others. Moreover, the court said, there was no reason to believe that the new (female) manager would not stop further harassment from occurring. After her complaint resulted in the firing of one supervisor and the disciplining of another, the employee knew that the company would take any other complaint seriously.
Given those considerations, the employee was not constructively discharged because no reasonable person in the employee’s position would have felt forced to quit when she did.