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Scott Wagner & Associates, P.A. Motto
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When Workplace Discrimination Forces You to Quit: Understanding “Constructive Discharge”


It is obviously illegal for an employer to fire someone for a discriminatory reason. But an employer may also be held liable for a “constructive discharge,” i.e., a situation where an employee faces working conditions that are so discriminatory they feel compelled to quit. In assessing a discrimination claim based on constructive discharge, a court will look at whether a “reasonable person” in the same situation as the plaintiff would have found working conditions “so intolerable or aggravated” as to make resignation their only practical option.

Federal Court Reinstates Discrimination Complaint Against Home Depot

Whether “intolerable” conditions exist is often a close question for the courts. Consider this recent decision from the U.S. Ninth Circuit Court of Appeals in San Francisco, Wheeler v. Home Depot USA, Inc. This case involved a plaintiff who resigned from her management job with Home Depot. The plaintiff said she quit before she could be fired as the result of age and gender discrimination. A trial court granted summary judgment to Home Depot, finding that while the plaintiff “may have been unhappy” with her working conditions, she could not prove those conditions were “intolerable.”

A divided three-judge panel of the Ninth Circuit took a different view. The majority held that, examining the available evidence in the most favorable light to the plaintiff, she did present a plausible case for constructive discharge. As the appeals court explained in its unpublished opinion, the plaintiff had worked at Home Depot for 20 years and consistently received “excellent reviews, raises, and bonuses.” Yet in 2014, the plaintiff received a “progressive disciplinary notice” from her supervisor. The plaintiff presented evidence that this notice was part of an attempt to “get rid of older managers because they had high salaries.”

The plaintiff alleged she continued to receive disciplinary notices without justification. One day, an executive sent an email to a group of store managers that said the plaintiff “will be receiving her Final [notice] this week.” This email was apparently sent in error, and the sender quickly sent a follow-up message indicating the original email “was not intended for them and contained privileged information.”

Nevertheless, the plaintiff took this email as a clear sign she was about to be fired. She alleged a human resources manager confirmed as much when she asked the plaintiff “whether she knew anybody who could hire her.” The plaintiff subsequently resigned.

The Ninth Circuit said that even if the executive’s email had been “sent by accident,” a jury could find this was proof the company was about to fire the plaintiff. If nothing else, the email had a “devastating impact on [the plaintiff’s] credibility and ability to work with her colleagues.” This was enough to create a “triable issue of fact” with respect to constructive discharge, so the Ninth Circuit returned the case to the lower court for further proceedings.

Get Expert Legal Advice Regarding Discrimination

By their nature, employment discrimination cases are highly fact-specific. That is why if you have evidence that you have been the target of any form of illegal discrimination, it is a good idea to consult with a qualified California employment law attorney as soon as possible.

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* Cathleen Scott is licensed to practice in Florida only.

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