New perils surrounding constructive discharge vs. termination of employment
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New perils surrounding constructive discharge vs. termination of employment

Think you can avoid wrongful termination of employment if the worker quits?

When an employee resigns because she perceives she’s the victim of severe and pervasive harassment that management is either unwilling or unable to stop, she may as well have been a victim of wrongful termination of employment

So ruled an appeals court in a case that weakens what’s known as an employer’s “affirmative defense.”

In an “affirmative defense,” the company argues in court that “While it’s true that she may have been harassed, she quit before we had a chance to fix the problem. There was no adverse action. She made the decision to quit.”

The court’s ruling in this case makes it much more difficult for companies to make this claim to defend itself against wrongful termination of employment.


Nancy Suders worked as a communications operator for a state police force.

After five months on the job, Suders quit. Then she sued her employer. Her claim: she’d been sexually harassed by her supervisors.

Suders cited several instances of name-calling, repeated episodes of explicit gesturing, obscene and offensive sexual conversation, and the posting of vulgar images in common areas of the workplace.

At first, a district court tossed the case. Why? Because Suders hadn’t been fired. There had been no termination of employment, and thus no adverse action.


But an appeals court wasn’t sure it was that simple.

Suders’ resignation, which was virtually forced, amounted to wrongful termination of employment, said the court.

And the defense described above is only applicable in the absence of an adverse action. “Constructive discharge,” wrote the court, “was a tangible action that precluded the affirmative defense.”

In other words, once the court concluded she’d been railroaded out of her job (an adverse action), the company could no longer say, “She quit before we had a chance to fix the problem.”

This decision could have a far-reaching impact on how future courts rule in cases where previously an employer might have prevailed with an affirmative defense against wrongful termination of employment.


Generally, this happens when a court decides that no reasonable person would have stayed in the job under such conditions, and the employee tried without success to get the employer to correct the problem prior to termination of employment.

Historically, it hasn’t been easy to prove a constructive discharge case, and the rules vary from state to state. But this case should make constructive discharge easier for an employee to prove, because it takes the wind out of the affirmative defense.

A company could find itself liable for wrongful termination of employment by constructive discharge – and barred from using an affirmative defense – when an employee does any of the following:

  • Quits her job after she complained about a hostile work environment more than once, and management took little or no action. In this case, the appeals court said the district court had erred in that regard. It noted that although Suders had complained to HR on two occasions, the department’s response was minimal, her complaints weren’t taken seriously and an adequate investigation wasn’t triggered.
  • Resigns rather than endure severe and pervasive harassment – if she can show that the company failed to address her complaints.
  • Proves that her employer intended to drive her out of the company.

As always, the best way to avoid any kind of lawsuit arising from a hostile work environment is to enforce your company’s harassment policies in spirit and to the letter – rigorously and consistently.

Cite: Suders v. Easton, U.S. Court of Appeals, 3rd Circuit, No. 01-3512, 4/16/03. HR 1.23

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