Consider the possibility that your employer may want you to quit. Getting fired from a job means you can apply for unemployment benefits and even sue for wrongful termination – if you quit, however, you can do neither of these things.
If your employer’s goal is to get you to quit because they’re afraid you’ll sue for wrongful termination, then you may be subjected to intolerable working conditions that would compel any reasonable person to quit. Under these circumstances, an employee’s resignation could be considered a constructive discharge and the employee may be able to seek damages.
The legal concept of a constructive discharge has its roots in the U.S. labor union movement during the 1930s. At that time, employers would clamp down on unions by making union workers’ lives so miserable that they had no choice but to resign.
In response, the National Labor Relations Board adopted the concept of the constructive discharge in the National Labor Relations Act. The U.S. Supreme Court has since held that employees can sue when an employer violates the act by “purposely [creating] working conditions so intolerable that the employee has no option but to resign.”
Constructive discharge was developed in response to abuse experienced by union workers, but they aren’t the only ones the law protects. The courts have extended the right to sue for a constructive discharge to non-union employees. The core concept in West Virginia is the same: a constructive discharge claim arises when the employee claims that because of age, race, sexual, or other unlawful discrimination, the employer has created a hostile working climate which was so intolerable that the employee was forced to leave his or her employment. Although those intolerable conditions must be created by or known to the employer, it is not necessary that an employee prove that the employer’s actions were taken with a specific intent to cause an employee to quit.
What Kind of Working Conditions Are Considered ‘Intolerable’?
You could sue your employer for discrimination, harassment, or retaliation if your employer targeted you because of your association with a protected class (age, sex, race, religion, etc.) or for engaging in a protected workplace activity (i.e. reporting sexual harassment or demanding unpaid earned wages).
Your employer knows this and is probably also aware that firing you for any of the reasons above could give you the grounds you need for a wrongful termination lawsuit. Therefore, an employer may try to make your life miserable to get you out of the workplace.
Still, your employer’s intent to get you out of the workplace or its knowledge of the intolerable conditions matters. For instance, if an employee reports sexual harassment, the employer fails to address the issue, and the harassed employee is forced to leave his or her job, this may be a constructive discharge. That employee could claim that a constructive discharge occurred because he or she had no choice but to quit after she was subjected to a hostile work environment that the employer failed to correct.
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