Employers Should Curb Workplace Verbal Battles

An employer is not only liable for actually terminating a worker on the basis of race, gender, national origin and other protected classifications. A worker may also have a claim if the employer “unlawfully constructively discharged” that person (also known as “unlawful (or wrongful or illegal) constructive termination” or “unlawful constructive dismissal”). See, “Constructive Discharge, When Employers May Be Liable for ‘Causing’ a Resignation.”

An employee claiming unlawful/wrongful constructive discharge must show the employer made the environment so unbearable on the basis of that person’s race, national origin, or other such protected classification that the worker had no reasonable choice but to resign. In effect, the employer fired that worker just for creating such extremely hostile conditions and can be liable for discrimination even though the business took no formal action to terminate the person. See, Turner v. Anheuser–Busch (1994).

Under appropriate circumstances, the courts may also treat a retirement as a wrongful constructive discharge. In one California case, an university made the employee’s working conditions “so intolerable that her preexisting medical condition worsened to the point where she was no longer able to function in her duties and needed to remove herself from her job.” The court thus found such conditions caused her disability-based retirement, thus amounting to an illegal constructive discharge. See, Colores v. Board of Trustees of Calif. State Univ. (2003).

An employee does not automatically have a claim for unlawful constructive discharge just because he or she was belittled or harshly criticized. Again, the extreme hostility that triggers a legal claim must be based on a person’s protected characteristics or classification that is protected by the anti-discrimination law. A worker would not have a constructive discharge claim arising out of management’s rough verbal reactions to that employee’s production errors. That might cause a constructive discharge, but not an illegal one. However, that worker would have a possible unlawful constructive discharge claim for extreme abuse over his or her gender, religion, physical or mental disability or the like.

Executives and managers are of course expected to create and maintain a working environment that promotes understanding, collaboration and efficient, quality production. Supervisors are best advised against any prolonged angry or antagonistic treatment of any worker for any reason, with zero tolerance of any hostility expressed due to a person’s membership in a classification protected by law. An experienced employment lawyer is equipped to help management navigate this area, preferably well before any trouble or legal claim arises.

May 25, 2012