In some cases, when an employee is discriminated or retaliated against because of a protected characteristic, complaint of discrimination, or status as a whistleblower, that employee will quit before being fired. In most cases, such voluntary separation is not considered an adverse action for purposes of discrimination and whistleblower statutes. However, if the environment was so intolerable that a reasonable employee would feel compelled to resign, the resignation may be treated as a constructive discharge. If you believe that you were subject to a constructive discharge, you may be able to recover damages by filing a wrongful termination lawsuit. The Austin wrongful termination lawyers at Wiley Walsh, P.C. are here to advise you.Recognizing a Constructive Discharge
To establish a discrimination or retaliation claim, a worker must generally show (1) they are in a protected group or engaged in protected activity, (2) they were qualified for their job, (3) they suffered an adverse action, and (4) they were replaced by someone outside the protected group or there was a causal link between the protected activity and the adverse action. Generally, a resignation does not qualify as an adverse action. However, in some circumstances, resignations can be considered involuntary separations. These involuntary resignations are known as constructive discharges and they are considered adverse actions.
For a resignation to qualify as a constructive discharge, the job conditions must so intolerable that a reasonable person in your shoes would have felt compelled to quit. This is an objective standard.
The factors that the court will consider to determine whether there was a constructive discharge include whether:
- You were demoted;
- Your salary was reduced;
- Your job responsibilities were reduced;
- You were reassigned to degrading work;
- You were reassigned to work under a younger supervisor;
- You were harassed or humiliated; or
- You were offered early retirement or continued employment on less favorable terms.
It is not enough to show that you were subjected to a hostile work environment. Instead, you must have been subjected to a particularly severe or pervasive level of harassment above the hostile environment standard that would cause any reasonable employee to quit. Similarly, it is not enough to show that you were subjected to a discriminatory work environment. For constructive discharge, there must be aggravating factors. Any of the factors listed above can support a finding of constructive discharge in certain circumstances and in combination. It is not necessary to prove that your employer intended to force you to quit.
The constructive discharge standard may also be met if your employer gave you an ultimatum to quit or be fired. If an employee quits after receiving an ultimatum to quit or be fired, then a court will most likely view the work separation as involuntary. This is true regardless of whether or not the employer offers additional benefits to an employee as incentive for quitting.
Sometimes, constructive discharge is subtler, but it must still be based on an employer acting in such a way that a reasonable employee would feel compelled to resign. For example, if you were a management-level employee, and when new management came, you were subjected to significant slurs and abuse by coworkers and supervisors regarding your national origin, and then get demoted to a career-ending position. These acts may give qualify as constructive discharge if you resign.
Constructive discharge is important because it allows you to bring a wrongful termination claim and recover damages, even though you quit. However, it is an extremely difficult standard to meet and you should consult with an attorney prior to resigning or separating from your work.Discuss Your Case with a Wrongful Termination Attorney in the Austin Area
If you believe your employer is trying to get you to quit or that you involuntarily resigned, you should consult an employment discrimination lawyer. We may be able to help you evaluate the next steps to take and bring a wrongful termination claim. The Austin attorneys at Wiley Walsh, P.C. represent employees in cities such as Austin, Georgetown, Round Rock, Cedar Park, Pflugerville, Leander, Del Valle, Kyle, San Marcos, San Antonio, New Braunfels, and Fredericksburg. Call us at (512) 271-5527 or use our online form to set up an appointment.