That's It--I Quit!

It may sound like nonsense, but former employees can sue you for unlawful termination even if you didn't fire them.

Life was looking good for a Pittsburgh waitress when she was promoted to maitre d' and pastry chef at the restaurant where she worked, an uncharacteristic move from ownership that made her the only woman in a management position there. But within a few months, it seemed that the promotion must have been a mistake.

She found she was excluded from management meetings and had difficulty ordering supplies. Later, she discovered the owner and the general manager had decided they didn't want a woman as maitre d' because she didn't "fit the mold." She learned the general manager had boasted she wouldn't be there long and asked the chef to find a man to replace her. Then the chef accused her of stealing and drinking on the job--charges, she later alleged, suggested by the owner of the business. She even found wine bottles wrapped in an apron, hidden in her locker as if she'd stolen them. After numerous unsuccessful attempts to discuss all this with the owner, she finally resigned--then sued over sex discrimination, claiming that, in effect, she'd been illegally terminated.

The legal concept at work here is "constructive discharge," which means the employee resigned because the employer made conditions at work so intolerable that no one in his or her right mind would want to continue at the job. In some cases, it's a legitimate charge brought by people who were forced out by outrageous behavior on the part of their employers. In others, it's used by disgruntled former employees trying to find a hook to hang a lawsuit on. "Constructive discharge is often alleged, but rarely successful," says employment attorney Paul Salvatore of Proskauer Rose LLP in New York City. "[Typically,] you have to prove to the jury that the employer deliberately created conditions so intolerable that any reasonable person would quit." Some courts adopt a more objective standard: that the employer knowingly permitted a pattern of behavior with the foreseeable result of intolerable working conditions. Either way, it's difficult for a plaintiff to prove.

Steven C. Bahls, dean of Capital University Law School in Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.

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This article was originally published in the November 1999 print edition of Entrepreneur with the headline: That's It--I Quit!.

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