Were You Fired or Did You Quit Your Job? They May be the Same Thing
If there are problems in the workplace, it is no secret that most employers would prefer that you resign or quit, instead of having to fire you. If you resign or quit, there is the impression that it is a voluntary act; you could not have been discriminated against or harassed, because you were the one who chose to end your employment relationship.
And if your work environment became so intolerable and unfair or harassing, and you had no other choice but to quit or resign, you may think that you can’t do anything about the harassment that forced you to quit after all, the decision to quit was yours.
Quitting May Not be Quitting
But think again—this is not the case, because of a legal concept called constructive discharge. Constructive discharge is when you voluntarily quit, but only because the environment where you work became so intolerable, that you had no choice.
If a court does find that you were constructively discharged, you would have all the rights that you would have, had you actually been fired.
This means that when an employee quits his or her job and wants to sue for harassment or discrimination or hostile work environment, a primary and threshold question is whether the employee actually quit, or whether the employee was constructively discharged.
What is Constructive Discharge?
To be constructively discharged, an employee must show that a reasonable employee, in the same situation would have also quit because of the adverse or hostile situation in the workplace, and that the employer knew of the conditions, or else, acted in a way that was designed to get the employee to quit.
The employee must show that the conditions at work were so egregious, that it was enough to overcome all of our motivations to work and make a living.
This usually involves some sort of pattern, or continued behavior, not an isolated incident. However, if a single incident is bad enough (like physical harassment), forcing the employee to quit, it could also amount to constructive discharge. Again, the standard is whether a reasonable employee, faced with the same behavior that the employee faced, would also have found the work environment intolerable.
Knowledge is Required
Employers must know about the intolerable conditions. That means, actually know, and do nothing about it.
That’s why employees who feel their work environment is getting intolerable should report the offending or offensive behavior, to supervisors. An employee can’t keep his or experience to himself, and then later comes back and blame the employer for constructively firing the employee.
It’s Not the Firing
Note that it isn’t constructive firing itself that is illegal. Firing an employee by any means, constructive or otherwise, is legal in California, an at-will employment state. The constructive firing just allows the employee to sue for retaliation, discrimination, breach of employment contract, or any other form of harassment or discrimination that may have otherwise existed at work. The constructive firing gets treated as an actual firing.
If you have been discriminated against at work, you have rights. Contact the San Jose employment lawyers at the Costanzo Law Firm today.