10.2190/HDUP-D097-2EBT-GE3X HDUPD0972EBTGE3X 5 Constructive Discharge—A. K. A. Was it a Quit or a Discharge? Understanding the Doctrine and Prevention of Constructive-Discharge Cases 47 59 20020509 20020509 20020509 20020509 HDUPD0972EBTGE3X.pdf http://baywood.metapress.com/link.asp?target=contribution&id=HDUPD0972EBTGE3X 1 George W. Bohlander Arizona State University, Tempe It is increasingly common for employees to quit or resign their employment due to Title VII charges and subsequently claim their employment rights were violated since they were constructively discharged. That is, they were "forced to resign because of intolerable working conditions purposefully placed upon them by the employer. A finding of constructive discharge can be quite expensive for employers and entail reinstatement with back pay, front pay in lieu of reinstatement, damages, and attorney's fees. The purpose of this article is twofold. First, to trace the legal development of the constructive-discharge doctrine, thereby illustrating its impact on employee rights and employer responsibilities. Second, based on the court cases discussed. the article concludes by providing seven important guidelines to prevent constructive-discharge lawsuits.

Young v. Southwestern Savings and Loan Association, 509 F.2d 140, 141 (5th Cir. 1975).

Burlington Industries, Inc. v. Ellerth, 1998 WL 336326 (U. S.).

Howard E. Sullivan, III, "Labor Law—Employment Discrimination—Employer That Knowingly Permits Acts of Discrimination So Intolerable That Reasonable Employee Subject to Them Would Resign May Be Liable for Constructive Discharge Under Title VII," Villanova Law Review, vol. 30 no. 3-4 (June, 1985), pp. 1028-1039.

Mark W. Kelley, Constructive Discharge: A Suggested Standard for West Virginia and Other Jurisdictions, West Virginia Law Review, vol. 93, no. 4 (Summer 1991), pp. 1047-1060.

Ralph H. Baxter, Jr., and John M. Farrell, "Constructive Discharge—When Quitting Means Getting Fired," Employee Relations Law Journal, vol. 7, no. 3 (Winter 1982), pp. 346-368.

Beye v. Bureau of National Affairs, 59 Md. App. 642, 653, 477 A.2d 1197, 1203 (1984).

National Labor Relations Act, 29 U. S. C. §§ 151-169 (1982).

In 1997, 25,809 unfair labor practice charges were brought against employers. Of these, 13,127 were Section 8(a)(3) filings.

Martin W. O'Toole, "Choosing a Standard for Constructive Discharge in Title VII Litigation, "Cornell Law Review, vol 71, no. 3 (March 1986), pp. 587-617.

Ira M. Saxe, "Constructive Discharge Under the ADEA: An Argument for the Intent Standard," Fordham Law Review, vol. 55, no. 6 (May 1987), pp. 963-1001.

Crystal Princeton Refining Company, 222 N. L. R. B. 1068 (1976).

Sure-Tam, Inc. v. NLRB, 467 U. S. 883 (1984).

Glass v. Petro-Tex Chemical Corporation, 757 F.2d 1554 (5th Cir. 1985).

Bourque v. Powell Electrical Mfg., Co., 617 F.2d 61 (5th Cir.).

Buckley v. Hospital Corporation of America, 758 F.2d 1525 (11th Cir. 1984).

Frazier v. KFC National Management Company, 491 F.Supp. 1099 (M. D. Ga. 1980).

Holsey v. Armour Company, 743 F.2d 199 (4th Cir. 1984).

Taylor v. Jones, 489 F. Supp. 498 (E. D. Ark. 1980).

Uvideo v. Steves Sash and Door Company, 738 F.2d 1425 (5th Cir. 1984).

Muller v. United States Steel Corporation, 509 F.2d 923 (10th Cir. 1975).

Velasquez v. City of Colorado Springs, 23 Fair Employment Practice Cas. 621 (D. Colo. 1980).

Henson v. City of Dundee, 692 F.2d 897 (11th Cir. 1982).

Circuit courts of appeal following the reasonable person standard include the First, Second, Third, Fifth, Sixth, Ninth, Tenth, Eleventh, and the District of Columbia. The Fourth and Eighth Circuit Courts of Appeal hold that a plaintiff must show that the employer had the specific intent of coercing the resignation.

Derr v. Gulf Oil Corp., 796 F.2d 340 (10th Cir. 1986).

Calcote v. Texas Educational Foundation, Inc., 578 F.2d 95 (5th Cir. 1978).

Goss v. Exxon Office Systems Co., 747 F.2d 885 (3rd Cir. 1984).

Heagney v. University of Washington, 26 Fair Employment Practice Case, 438 (9th Cir. 1981).

George W. Bohlander and Robert J. Denney, "Designing a Legally Defensible Alternative Dispute Resolution (ADR) Agreement," Journal of Individual Employment Rights, vol. 7, no. 3 (1998), pp. 189-198.

Pittman v. Hattiesburg Municipal Separate School District, 644 F.2d 1071 (5th Cir. 1981).

Meyer v. Brown and Root Construction Co., 661 F.2d 369 (5th Cir. 1981).

Johnson v. Bunny Bread Co., 646 F.2d 1256 (8th Cir. 1981).

George D. Mesritz, "Constructive Discharge and Employer Intent: Are the Courts Split Over a Distinction Without a Difference?" Employee Relations Law Journal, vol. 21, no. 4 (Spring 1996), pp. 89-98.

Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989).

Hukkanen v. International Union of Operating Engineers, 3 F.3d 281 (8th Cir. 1993).