Employers know that when they fire someone for an illegal purpose - such as sexual or racial discrimination, or retaliation for advancing a workers' compensation claim - they can get into trouble with state and federal authorities. They also dislike being made to pay unemployment taxes. For those reasons, some employers - in an attempt to get rid of employees without firing them - will undertake a pattern of harassment that is designed to force the employee into quitting.
In these situations, the employee often tries to hang on to their work for a period of time, but eventually, the pressure becomes enough that they quit. And they then assume that - even if the motivation of the employer was in some way discriminatory or retaliatory - there is nothing they can do since they "quit" in a way that was "voluntary." In Texas, where I practice, this assumption is incorrect.
Texas law recognizes a concept called "constructive discharge." Constructive discharge is not itself a cause for filing a lawsuit. However, it can be used as a substitute for proof of "termination" in discrimination and retaliation cases. Thus, if your employer has an illegal purpose in taking action, it doesn't matter if the employer fires you outright or harasses you into quitting, you can still make a claim if the reason behind the behavior was illegal.
To prove a constructive discharge, you must show that you made a reasonable decision to resign because of unendurable working conditions. The question is not whether the employee subjectively felt that their situation was "unendurable" (or intolerable) but whether a reasonable person in the employee's position would have found the situation unendurable.
There are several types of behaviors - called "aggravating factors" - that are often at play in bringing about a constructive discharge. They include things like:
- Reduced pay
- Reduced responsibilities
- Assignment to degrading work
- Badgering or harassing the employee
The last two are by far the most common types of behavior that I have seen at work in the constructive discharge cases that I have encountered. The employer will often look for a way to make the employee feel belittled by the type of work that they are undertaking, and single the employee out for disciplinary action and public reprimands.
If you are in a situation where you feel like your employee is trying to force you to quit for some illegal purpose, you should take action to document the employer's conduct. Make a complaint to someone in your workplace about it, whether it is your supervisor, an HR manager, or even the owner. Be clear about the conduct that is being undertaken. And make sure that it is in writing. It may not necessarily change the conduct, but it will provide critical documentation of the conduct at a later stage, where those involved are likely to deny that any of it was taking place.
And, as always, if you have to quit a job and you think it may have been a constructive discharge due to discrimination or retaliation for making a workers' compensation claim, or some other improper reason, be sure to consult an attorney in your area who practices employment law.