As many of Florida’s employment law attorneys know, the standard for constructive discharge is even higher than the standard for proving a hostile work environment. See Hipp v. Nat’l Liberty Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001). See also Poole v. Country Club of Columbus, Inc., 129 F.3d 551 (11th Cir. 1997). As stated by the Eleventh Circuit in Hipp, to prove constructive discharge, a plaintiff must show that the employment conditions were so intolerable that a reasonable person in the employee’s shoes would have been compelled to resign. See also Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) (“The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?”) As noted by the United States Supreme Court in Suders, the Circuit Courts of Appeal have recognized constructive discharge claims in a variety of contexts, such as pregnancy discrimination, sexual harassment and discrimination, age discrimination, and religious discrimination. See Id. at 142 (collecting cases).
Under certain conditions, employers may be held vicariously liable for the acts of their supervisors. See Suders, 542 U.S. 129. However, when such a claim is raised, the employer may invoke the Ellerth/Faragher affirmative defense. Under such affirmative defense, the employer has to show both that (1) “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior;” and (2) that “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Suders, 542 U.S. at 145-146. Because the Ellerth/Faragher borrows from tort law by requiring plaintiffs to “to stave off avoidable harm,” the employer/defendant has the burden of showing that the employee/plaintiff unreasonably failed to avoid or reduce harm. See Id.
Some constructive discharge cases illustrate how just how terribly some employers can treat their employees. See Suders, 542 U.S. 129 (female officer repeatedly sexually harassed by supervisor); Poole, 129 F.3d 551 (executive secretary who had been exposed to derogatory comments about her age over period of time had her office key taken from her possession under false pretenses and was eventually relocated, upon returning from a vacation, to different “office” with no furniture, and given no meaningful work to do); U.S. EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244 (11th Cir. 1997) (plaintiff/employee who was repeatedly harassed about her age discovered, upon returning from five day vacation, that her employer placed an ad for her position without telling her).
However, just as with any employment discrimination claim, constructive discharge cases are intensely fact-driven, and can be difficult to prove. See Hipp, 252 F.3d at 1231 ( reversing verdict in favor of plaintiff because evidence only showed that one individual had an amorphous policy in his own division; noting that pervasive conduct by the employer is required before the Court will find that a hostile work environment or constructive discharge occurred). Although it may seem illogical in the context of hostile work environment/constructive discharge claims, employees would be wise to remain in their employment while they seek redress. See Sharp v. City of Palatka, 529 F. Supp. 2d 1354 (M.D.Fla. 2007) (finding that police officer failed to show that he was constructively discharged for his political speech; noting that even if the officer had proven that the assertions of misconduct were correct, the officer’s act of immediately quitting gave the employer no opportunity to remedy the situation); Suders, 542 U.S. at 147 (“[U]nless conditions are beyond ‘ordinary’ discrimination, a complaining employee is expected to remain on the job while seeking redress.”) (quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997)).
In these tough economic times, it may also be important to recall that merely working for less pay may not necessarily rise to the level of constructive discharge. See Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61 (5th Cir. 1980). And, where claims of constructive discharge arise in the context of early retirement, employee buy-outs, or other employer-driven staff reduction measures, courts generally begin their analysis by determining whether the employer has made the staff reductions in a neutral manner, and may be hesitant to second guess business decisions. See Rowell v. BellSouth Corp., 433 F.3d 794 (11th Cir. 2005) (finding that employee who took early retirement package failed to show age discrimination/constructive discharge; noting that until it’s evident that there is no objectively reasonable opportunity to remain employed, the employee cannot, as a matter of law, contend that he or she has been discharged.)