Category Archives: Constructive discharge

Constructive discharge, Retaliation claims, WV Human Rights Act

Understanding “Constructive Discharge” in Employment Law—When Quitting Is Really Getting Fired

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Intro­duc­tion
Most peo­ple think of get­ting fired as a clear-cut event—your boss calls you into the office, maybe there’s a stern con­ver­sa­tion, and you’re sent pack­ing. But not every ter­mi­na­tion is that explic­it. Some­times, the work­ing con­di­tions get so bad that an employ­ee feels they have no real choice but to quit. That’s where the legal con­cept of con­struc­tive dis­charge comes into play.

In West Vir­ginia (and under fed­er­al law), con­struc­tive dis­charge is tech­ni­cal­ly not a self-suf­fi­cient legal claim. Con­struc­tive dis­charge is a legal doc­trine for deter­min­ing whether a res­ig­na­tion will be treat­ed as a dis­charge, so that the con­struc­tive­ly dis­charged employ­ee is treat­ed as hav­ing been invol­un­tar­i­ly sep­a­rat­ed (ter­mi­nat­ed, fired). If an employ­ee’s res­ig­na­tion is tru­ly vol­un­tary, then there is no “wrong­ful dis­charge,” and the employ­er is not legal­ly respon­si­ble for the employ­ee’s finan­cial harm after the res­ig­na­tion. But if the res­ig­na­tion is treat­ed as a con­struc­tive dis­charge, the employ­ee may have a viable wrong­ful dis­charge claim, and may have recov­er­able dam­ages for the finan­cial harm expe­ri­enced after the dis­charge. But the con­struc­tive dis­charge itself is not inde­pen­dent­ly “actionable”–it must be cou­pled with a legal the­o­ry such as sex dis­crim­i­na­tion or retal­i­a­tion for whistleblowing.

Con­tin­ue read­ing Under­stand­ing “Con­struc­tive Dis­charge” in Employ­ment Law—When Quit­ting Is Real­ly Get­ting Fired →
Age Discrimination, Constructive discharge, Hostile work environment, Result for Employee, Title VII of the Civil Rights Act of 1964

Fifth Circuit applies hostile work environment to age claims

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Courts have some­times ques­tioned whether hos­tile work envi­ron­ment claims apply to all “fla­vors” of dis­crim­i­na­tion. Hos­tile work envi­ron­ment claims most fre­quent­ly arise in claims of sex dis­crim­i­na­tion  and race dis­crim­i­na­tion claims under Title VII of the Civ­il Rights Act of 1964, but age dis­crim­i­na­tion claims under fed­er­al law arise under a dif­fer­ent statute, the Age Dis­crim­i­na­tion in Employ­ment Act of 1967.

The Fifth Cir­cuit direct­ly held recent­ly that hos­tile work envi­ron­ment claims are encom­passed by age dis­crim­i­na­tion claims under the ADEA in Dedi­ol v. Best Chevro­let, Inc., — F.3d — (5th Cir. Sep­tem­ber 12, 2011).

Con­tin­ue read­ing Fifth Cir­cuit applies hos­tile work envi­ron­ment to age claims →
Attorney's Fees, Back and Front Pay Issues, Constructive discharge, Emotional Distress Damages, Employment policies, Hostile work environment, Prompt remedial action, Race discrimination, Result for Employee, Retaliation claims, WV Human Rights Act, WV Human Rights Commission, WV Supreme Court

The disastrous consequences of the N‑word in the workplace. Just ask Dr. Laura!

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Okay, this arti­cle has noth­ing to do with Dr. Lau­ra Sch­lessinger and her “rant” in which she used the N‑word repeat­ed­ly on her radio pro­gram when respond­ing to an African-Amer­i­can caller. But the ensu­ing con­tro­ver­sy (see arti­cles for and against Dr. Lau­ra), and her deci­sion to end her long-run­ning radio pro­gram, high­light the extra­or­di­nary sig­nif­i­cance of the N‑word term in Amer­i­can society.

The West Vir­ginia Supreme Court recent­ly dealt with the N‑word in a case that high­lights the great risks for employ­ers when that word enters the workplace.

In PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , 225 W. Va. 624, 695 S.E.2d 854, 2010 WL 2244096 (June 3, 2010) (per curi­am), the West Vir­ginia Supreme Court dealt with a claim of a racial­ly based hos­tile work envi­ron­ment under the West Vir­ginia Human Rights Act, and con­clud­ed that the West Vir­ginia Human Rights Com­mis­sion was jus­ti­fied in find­ing for the employ­ee. The deci­sion was unan­i­mous. Click here for the WV Human Rights Com­mis­sion’s deci­sion which was affirmed by the WV Supreme Court.

A Single Day, With the N‑Word Again and Again

PAR Elec­tri­cal was build­ing “giant tow­ers” for a high volt­age elec­tri­cal trans­mis­sion line. Richard Wayne Bev­elle was hired by PAR Elec­tri­cal on March 22, 2005, and, after work­ing as a “ground­man” assem­bling the tow­er bases, was assigned to load heli­copters with parts to con­struct the tow­ers (this heli­copter job was described as a “gravy job” by the Human Rights Com­mis­sion). Mr. Bev­elle is African-American.

Con­tin­ue read­ing The dis­as­trous con­se­quences of the N‑word in the work­place. Just ask Dr. Lau­ra! →