A Virginia employee writes in to ask:
I have been the victim of a hostile work environment, sexual harassment, discrimination, and retaliation for about the last two months. My supervisor is the one who is harassing and discriminating against me. I couldn't take any more humiliation in front of my teammates. So, due to the emotional distress, I gave my two weeks notice. Since I've quit, do I still have a case?
This is an interesting question for a lot of reasons, and the short answer is that, yes, the employee still has a case, assuming that they had a case in the first place. Let's talk about the impact that the employee's decision to quit has on that case.
Does the Employee Have Any Sexual Harassment Claims?
I'll start by saying that we don't know if the employee has any employment law claims. We're not going to answer that question, either. We are going to assume that whatever the employee has been subject to legally qualifies as (1) hostile work environment sexual harassment, (2) discrimination, and (3) retaliation for some form of protected activity like a complaint about sexual harassment. That allows us to focus on the real question: whether those three employment law claims still exist after the employee quits her job. They do.
In order to have a sexual harassment constructive discharge case, the employee has to have a viable sexual harassment case. In this article, we're assuming that's the case. Image © inaptitude -- stock.adobe.com
That's because when the employee quit, history didn't change. What I mean is that she had already suffered through illegal discrimination, harassment, and retaliation. So she would still be entitled to any damages that she was entitled to as a result of those employment law violations before she quit. Quitting doesn't change that.
The Damages for those Three Claims Might be Minimal.
There is, however, a catch: those three claims might not be worth a lot in terms of monetary damages. You see, the employee was earning her wages during the two months that she suffered at work. That means that she doesn't have any lost wages to recover for that timeperiod. It's likely that all she would be able to recover, for those three violations, are emotional distress damages. And unless the employee suffered a diagnosable psychological condition, two months of general emotional distress damages are unlikely to be large.
But What About Lost Wages Stemming From The Resignation?
But, you might ask, what about the employee's lost wages now? Isn't the employee losing pay now that she quit? Of course she is. And I suspect that the employee is primarily interested in whether the employer bears any liability for that. In this case, the answer is a bit more complex.
Enter the Constructive Discharge Doctrine
If you're facing discrimination or sexual harassment, speak with a Virginia employment attorney before you quit. Image © Swapan -- stock.adobe.com
Employers can be held liable for the lost wages of employees when those employees quit, under a theory called constructive discharge. Constructive discharge is a legal theory that essentially treats an employee's decision to quit as a termination, for the purposes of assessing liability and calculating damages.
In addition to everything a sexual harassment plaintiff has to prove, to also prove constructive discharge in hostile environment sexual harassment cases, the employee has to prove:
- They suffered harassment or discrimination so intolerable that a reasonable person in the same position would have felt compelled to resign, and
- They made a decision to resign that was reasonable given the totality of circumstances.
Employees Facing Harassment Must Follow Their Employers' Anti-Harassment Policies
See Penn. St. Police v. Suders, 542 U.S. 129, 147 (2004). In addition, in cases like this employee's where the decision to resign doesn't appear to follow some form of official company action like a demotion, reassignment, or decrease in pay, the employer has access to a legal defense stemming from two Supreme Court Cases referred to as the Faragher/Ellerth defense. The employer can thus get off the hook if they show that they have an effective anti-harassment/anti-discrimination policy in place and that the employee failed to avail herself of it.
So what does all of this mean? It means that employees like the one who wrote in do have access to relief through the courts, but that relief is harder to achieve than in "simple" sexual harassment cases.
Employees with Constructive Discharge Cases Need to be Prepared for the Possibility that Their Case will Be Dismissed in a Procedure Called a Motion for Summary Judgment. Image © md3d -- stock.adobe.com
How hard? Well, according to Georgia Southern University Professors Stephanie Sipe and Michael Wiggins, in their 2011 article, "The Legal Fiction of Constructive Discharge as Decided by Federal Courts in Employment Discrimination Claims," in the Academy of Legal Studies in Business Journal of Employment and Labor Law, the constructive discharge doctrine has "been eviscerated in most cases of workplace harassment brought by employees." As Professors Sipe and Wiggins point out, Federal Courts appear to be all-too-eager to use a procedural tool, the motion for summary judgment, to toss out constructive discharge claims before they ever get to a jury. As a result, the already-monumental task of winning a sexual harassment case is made even more difficult when the employee resigns before termination.
So what are employees to do when they are faced with an abusive and sexually-hostile work environment that is so bad that they can't take it? Virginia employees should follow these simple steps to preserve the value of any claims that they might have:
First, Before Deciding Whether to Quit, Speak with an Employment Attorney who Focuses on Representing Employees.
This firm, J. Madison PLC, as well as many of the attorneys who are members of organizations like the National Employment Lawyers Association or the Metropolitan Washington Employment Lawyers Association, focuses on representing employees and is familiar with the issues raised in sexual harassment cases. A competent and experienced employment attorney can likely help end the sexual harassment and prevent the need to resign. And if they can't do that they can help protect the viability of any necessary legal action and resulting monetary damages.
Second, Follow Your Employer's Written Steps for Reporting Sexual Harassment and Discrimination.
Preferably, you want to make this complaint with the help of counsel, but certainly in writing. If possible, you want to submit a version or confirmation of the complaint through an electronic system that will create a record or through email or certified mail with a return receipt. When you make the complaint, use the words "sexual harassment" and "discrimination" so that it's clear you are seeking the company's help to end illegal behavior. This will go a long way toward placing the burden of action on the employer to stop and prevent further harassment or discrimination. Even if the company later decides that there was no harassment or discrimination, the employee is in a better position once they've complied with the anti-discrimination policy.
Finally, an Employee Facing Sexual Harassment Should Consider Looking for a New Job.
Sexual harassment law, like most civil law, is only designed to make employees whole for any harassment they suffer. That means that winning a lawsuit can be a rather hollow end to what is often a years-long expensive legal struggle. Employees who win lawsuits generally only receive the amount of damages they suffered, their costs and reasonable attorneys fees, and no more (with some exceptions). So an employee who wins a sexual harassment lawsuit may feel like all they've been able to do was get back to zero. Adding insult to injury is the reality that most cases settle, and the incentive for the employer to settle is the employee's willingness to take less than 100% of the damages they might win at trial. Therefore, sometimes the best course of action is to find an employer and colleagues who respect you and won't treat you illegally, even as you attempt to achieve compensation for the harassment you've already suffered. This may reduce the size of any potential settlement or damages award in your legal case, but it will probably result in a better career and more happiness.
And if an employee finds themselves in the situation our questioner has (they've already quit), they should not despair. As I pointed out above, the constructive discharge doesn't remove access to relief for employment law violations that occurred prior to the resignation. And however flawed the courts' application of the doctrine, it does make recovery of post-resignation lost wages possible. At the same time, however, it just might make the case harder to win or settle, thus the rational employee will accept a lower settlement offer in the average constructive discharge case than they would in a similar termination case. But there may very well still be value in a constructive discharge case, so a constructively-discharged employee should speak with an employment law firm like J. Madison PLC to quickly move to protect their rights.