[ Hostile Work Environment that Causes a Constructive Discharge]

The Hostile Work Environment encompasses harassment based on sex, race, religion and national origin. The premise here is that the conduct that either direct supervisors, indirect superiors or co-workers was too unbearable in order for harassed parties to bear so that they had to quit - but this was effectively equal to being discharged by an employer who sanctioned the unwelcome behavior or did nothing about it.

There are six (or five) elements* that are usually weighed in deciding these cases:

(*Some courts have merged some of the elements)

 

[ Notes ]

Constructive Discharge cases are tried differently in Federal Courts and state courts. One the main issues that sets state law apart from federal law is what conditions make a workplace intolerable. Some courts will view it from the point of the view of the aggrieved employee while others assume a reasonable person standard.

[ Employer Liability - Federally and in California ]

To prove employer liability, the question of intent arises. California law uses a standard from the point of view of a 'reasonable employer' in the defendant employer's point of view. This is a complicated construction that supposes a situation where an similar employer would have view the employees situation as being bad that they themselves would have been compelled to resign.

On the other hand, the 9th Federal Circuit has no employer intent standard at all. Instead their standard views the question is from the point of a reasonable person in the plaintiff's situation and whether or not they would have felt tormented enough to resign. Other jurisdictions will require a very hard to-prove standard of requiring a specific intent to create a harassing workplace

Generally, under federal law there is employer liability if the termination is an explicit exercise of delegated authority from employer or the corporation itself that results in a direct loss of benefits. It is if the person doing the conduct has identity with the employer. If the harasser is so high up in the organization that they are the 'alter ego' of the company then there is general employer liability.

In a hostile work environment claim if there is no tangible employment detriment - then liability is not automatic. Liability for supervisor harassment turns on whether or not the harassed party failed to avail themselves of remedial actions within the organization. If the supervisor was acting in their capacity as a superior officer and acting as an agent of authority within the organization then there is a strong case for liability, provided the harassed party tried to do something about it. Whether or not quitting is a 'tangible employment detriment or not has been an unsettled question in some courts, check with your local EEOC or state agency to see.

For coworker harassment (this covers workers who are higher up but not directly above the worker) the legal standard used is that the employer knew or should have known - about the harassment and the employer failed in its duty to police and survey the workplace so as to prevent the harassment from happening.

If you cannot find intent on the part of the employer then this may cut off backpay mnoines but will not cut off the possibility of compensatory and punitive damages. Also, once an employee quits their job they have a duty to find another job in the meantime while they seek a remedy to situation that made them leave the job they were at.

This is an area where state law can vary significantly, so beware.

[ Retaliation ]

This is a relatively unsettled area of the law that will depend on the situation in each case. Generally, participating in an EEOC or state level investigation or filing a claim with one of these agencies can never be a lawful basis for negative employment actions level at employees by employers.

[ Relief and Remedies ]

If litigation concludes, or the EEOC and an employer reach a settlement these are the types of 'relief' you can get:

• Back Pay
• Hiring
• Promotion
• Re-instatement
• Front Pay
• A Reasonable accommodation

The above will most likely come about in the following forms (if not as a result of an outright judgment):

Damages - money claimed by, or ordered to be paid to, a person as compensation for a loss or injury. Compensatory Damages: reimbursement damages awarded that are sufficient to cover and repay the loss suffered. Punitive Damages: damages awarded in addition to actual (compensatory) damages when the defendant acted with recklessness, malice, or deceit. These damages are meant to deter future blameworthy conduct.

Joint Consent Decree -judicial decision that resolves a lawsuit that all parties agree to. Usually in the employment discrimination context the Defendant usually does not admit to any wrong-doing at all and typically agrees to pay a lump sum to the Plaintiffs and undertake measures to remedy the situation that led to the charge in the first place.

Injunction - an order issued by a court ordering someone to do something or prohibiting some act after a court hearing. So-called "mandatory" injunctions which require acts to be performed, such an act is the use of judicial (court) authority to handle a problem and is not a judgment for money (for that see damages).