When an employee claims an employer created a hostile work environment that resulted in a prohibited form of unlawful employment discrimination the employee must prove, among other things, that the employee suffered an adverse employment action. It is not enough that the employer was hostile towards the employee or that the employee found the workplace unpleasant. The employee must show the employer took some action that was adverse to the employee’s continued employment. (The standard is somewhat different in hostile work environment claims where the employee claims co-workers harassed the employee.)
Constructive discharge in hostile work environment claims in Texas
Sometimes, however, the employee decides to quit before the employer fires the employee. Here the employee claims that resignation resulted from the hostile work environment. The employee feels the workplace environment was so intolerable that a reasonable person would feel compelled to resign. The level of hostility in the workplace must be substantial to prevail on a constructive discharge case. The recent appeal decided by the Fifth Circuit Court of Appeals in Perret v. Nationwide Mutual Insurance Company shows the standard is high.
In Perret, the plaintiffs alleged the employer engaged in unlawful employment discrimination by creating a hostile work environment when their supervisor placed them on a progressive disciplinary plan. (One plaintiff alleged placement on the corrective action plan was on the basis of age, the other on the basis of age and race.) As a result of placement on the corrective action plan the two employees resigned. At trial the jury sided with the plaintiffs and held that the supervisor’s conduct was unlawfully motivated. Therefore, their resignations were constructive discharges. The appellate court; however, felt differently. The appellate court looked at previous decisions to identify several employer acts that could form the basis of a constructive discharge.
Employer acts that form the basis of a constructive discharge claim
These actions include:
2. reduction in salary;
3. reduction in job responsibilities;
4. reassignment to menial or degrading work;
5. badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation;
6. offers of early retirement that would make the employee worse off (whether accepted or not); or
7. the employer gives an ultimatum to quit or be fired.
Not finding corrective action to be among those factors, the appellate court overturned the verdict and handed the employer a victory. The court said it just wasn’t bad enough. So if corrective action isn’t serious enough then that leaves some room for supervisors to find ways to use their position to discriminate on an unlawful basis without incurring serious risk to themselves or the employer. In the eyes of the Fifth Circuit, the employee has to be on the tipping point of losing his or her job.
Keep in mind that this is a different–and much higher–standard from hostile work environment claims that involve a supervisor (or co-worker). In these other situations the employee does not have to show one of these specific acts to prevail on constructive discharge. Instead, the employee must show the situation was so severe or so pervasive that it affects your job performance or otherwise destroys the working conditions. If that is the case then the employee’s resignation is treated as though the employer intentionally fired the employee.
Different standards for hostile work environment in Texas
The key difference is whether the supervisor used management authority to engage in the unlawful harassment of the employee. In Perret, the supervisor used his power to place employees on disciplinary action. The appellate court looked for a management-related actions (known as a “tangible employment action”) as the employer’s unlawful conduct. In contrast, a supervisor never has “sexual harassment” listed as an intended job duty of a management role. That kind of unlawful conduct can prove a constructive discharge on this lower standard.