Sexual harassment, retaliation, and constructive
discharge. The trifecta of employment-discrimination claims. And all three were
the subject of a recent decision from the 3d Circuit. The decision contains
lots of interesting discussion points but I'll limit myself to just one for the
purposes of this post.
The plaintiff-employee contended that she resigned
because her boss called her a "bitch" during a meeting. The court
explained that, to establish a constructive discharge, the employee must show
that "the employer knowingly permitted conditions of discrimination in
employment so intolerable that a reasonable person subject to them would
resign." In determining whether the employee was forced to resign, the
court looks to several factors, including whether she was threatened with discharge,
encouraged to resign, demoted, subject to reduced pay, involuntarily
transferred to a less desirable position, subject to a change in job
responsibilities, or given poor performance evaluations.
So is being called a "bitch" at a meeting so
bad that it could force an employee to quit?
You may be surprised to learn that the 3d Circuit did not
answer this question in the negative. Nor did it find that this single incident
was sufficient to constitute a constructive discharge.
Instead, it sent the question back to the trial court.
The trial court had dismissed the claim based only on its dismissal of her
sexual-harassment claim. Although the district court was correct when it
determined that there cannot be a constructive discharge unless there was
conduct over and above a hostile work environment. The district court held
that, since there was no hostile work environment, there could not be a
constructive-discharge claim. Although that theory is correct, the 3d Circuit
explained, the district court had erroneously found that there was no hostile
environment. Thus, the 3d Circuit directed the trial court to reevaluate the
constructive-discharge claim after it had taken a second look at the
Mandel v. M&Q Packaging Corp.,
No. 11-3193 (3d Cir. Jan. 14, 2013) [an enhanced version of this opinion is available to lexis.com subscribers].
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog.
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