Sometimes, a work situation becomes so uncomfortable that the worker decides to quit rather than suffer another day. The question then arises: If the employee has been discriminated against before quitting, has the worker given up their ability to sue?
Maybe not. If a worker suffered from workplace sexual harassment or other types of discrimination, the worker may be able to sue even though they quit rather than waiting to be fired.
A worker’s resignation may be considered a “constructive discharge.” This means that the working conditions deteriorated so much that an otherwise diligent worker would lose the motivation to work. Put differently, where the working conditions become intolerable, unendurable, so unpleasant that a reasonable person would feel compelled to quit. If the worker proves this, a court will treat the worker as if they were fired for the limited purpose of brining the discrimination case.
Constructive discharge is not simply having a demanding supervisor, being loaded with extra job responsibilities, being disciplined on one occasion, or being yelled at by the boss. Below are some examples of things that can make out a case for constructive discharge:
- a humiliating demotion;
- extreme cut in pay;
- transfer to a position with unbearable conditions;
- being threatened with physical violence;
- numerous unwanted sexual advances;
- continuous transfers from location to location without reason;
And it’s not enough that the conditions are intolerable. The conditions must additionally be related to discrimination on some basis or in retaliation for something. For example, the intolerable workplace situation typically must be related to a worker’s race, color, sex, sexual orientation, religion, age, pregnancy, national origin, disability, or past or present service in the military.
Under Arizona state law, a worker who served as a whistleblower might also be able to sue after having been compelled to quit – even if the worker was not a victim of discrimination. A whistleblower is a worker who reports to a manager or supervisor, or to a government agency, that they believe their employer is violating a state law. There are a range of state laws that could make a worker a whistleblower for this purpose. If a worker makes a complaint to a supervisor or government agency and then that worker experiences an intolerable work situation shortly after, the worker might be able to quit and then sue as if they had been fired. Before resigning, a whistleblower might be required to notify their boss or HR department, in writing, of their intention to quit because the working conditions have become unpleasant.
If you recently quit or are thinking about quitting, and you believe the work conditions are intolerable, it is important to consult with an attorney to ensure you don’t miss any deadlines.
