Call The Right Attorney™
No Fee Guarantee

In today’s blog, we look at a recent United States Court of Appeals for the Fifth Circuit decision, Bye v. MGM Resorts Int’l, Inc., No. 22-60034, 2022 WL 4533723, at *5 (5th Cir. Sept. 28, 2022). The focus of this blog is about why it is absolutely critical to timely hire an experienced employment law firm that has sufficient resources to represent you in your case against your employer.

Beau Rivage employed Bailie Bye was as a server at its Terrace Café from January 7, 2015, until she gave two weeks’ notice on June 28, 2019. According to Bye’s lawsuit, her coworkers subjected her to pregnancy sex discrimination and harassment, which eventually led to her constructive discharge. After returning from maternity leave, her employer twice engaged in the interactive process and twice gave Bye her specifically requested lactation accommodations. (Best Law Read: Top Lactation Rights Lawyer Reply: As A New Mom, What Are My Nursing Rights At Work?; Help! My Boss Makes Me Pump In A Bathroom!; Can My Employer Make Me Pump Milk In My Car Or A Bathroom? Best Lawyer Reply!). As a result of her last accommodation – as specific break schedule, Bye claimed that her coworkers started to harass her and refuse to work with her.

Can my employer be liable for my coworkers’ harassment?

Top Employment Lawyer Answer: Yes, employers can be held liable for discriminatory harassment by coworkers if the effected employee reports or the conduct or management otherwise knows of such conduct; and the employer either endorses such conduct or fails to take action to correct it. (Best Law Read: Does A Coworker’s Porn Create A Sexually Hostile Working Environment Claim?; Can I Sue My Job For Sexual Harassment By Customers Or Coworkers? Best Employment Lawyer Answer!).

How do you prove an unlawful hostile work environment?

Best Workplace Harassment Attorney Answer: Title VII of the Civil Rights Act of 1964 prohibits harassment that creates a hostile work environment when it is based on an employee’s race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, or disability. (Best Law Read: What Is A Legally Hostile Work Environment?; How Do I Prove My Hostile Work Environment Claim?). An unlawful hostile work environment will be found where “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted).

How did Bye screw up her hostile work environment claim?

Employee’s Rights Lawyer Answer: The biggest problem was that Bye did not present the District Court with any specifics about the harassment received from coworkers regarding her lactation breaks. She did not identify the specific coworkers. She did not identify the specific comments. And she failed to address the frequency of the alleged conduct. As the United States Court of Appeals for the Fifth Circuit held: “Bye provided no evidence regarding who said what or how often, or how this treatment was related to her needing to take lactation breaks.” Bye at *3. Without that specific evidence, it is impossible to prove severe or pervasive. To that end, her attorney should have made sure to specify the coworkers involved and had Bye specifically attribute time ranges and frequency to each person. Frequently, employees that come to us do not actually know the full names of their coworkers, but a qualified employment attorney knows how to get all of the names and their information in discovery. (Best Law Read: You Don’t Need All Evidence To Start A Discrimination Case; Are You Experiencing A Hostile Work Environment?).

How do you prove constructive discharge?

Best Wrongful Termination Law Firm Answer: To prove a claim for constructive discharge, an employee must prove through sufficient evidence that working conditions were so intolerable that a reasonable employee would feel compelled to resign. Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). Factors that will be considered in determining whether a constructive discharge occurred include: badgering, harassment, or humiliation by the employer that appear calculated to encourage the employee’s resignation; demotion; reduction in salary or benefits; elimination or reduction of job responsibilities; reassignment to menial or degrading work; and suggestions or offers of early retirement. Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008) (Best Law Read: What Does “Constructive Discharge” Mean?Can I Sue My Employer For Wrongful Termination If I’m Forced To Quit? I Need A Lawyer!).

To establish constructive discharge requires, the employee must present evidence of a greater degree of harassment than that required to prevail on a hostile environment claim. Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir.1998). Thus, “[d]iscrimination alone, without aggravating factors, is insufficient for a claim of constructive discharge, as is a discriminatory failure to promote.” Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)(citing Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir.1990); Landgraf v. USI Film Products, 968 F.2d 427, 429–30 (5th Cir.1992), aff’d, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)).

How did Bye screw up her constructive discharge claim?

Top Employment Discrimination Attorney Answer: Well, given that she failed to present sufficiently specific evidence to support her hostile work environment claim, her constructive discharge claim was doomed. Again, the United States Court of Appeals for the Fifth Circuit held: “Bye seeks to rely upon the ‘badgering, harassment, or humiliation’ by other employees, but, again, she has provided insufficient evidence that conditions were so intolerable that she was compelled to resign.” Bye at *4. (Best Law Read: How Many Insults Equals Constructive Discharge?).

And although not addressed by the Fifth Circuit, which likely didn’t need to reach this point, Bye also likely killed her constructive discharge claim the moment that she gave two weeks’ notice.  Again, to prove a constructive discharge claim, the employee must prove the work environment was “intolerable” – which means “unable to be endured.” Unable to be endured does not mean that it can be endured for two more weeks. Any employee planning on claiming constructive discharge should not give two weeks’ notice to the employer. (Best Law Read: Do I Have To Give My Boss Two Weeks’ Notice?).

More important that learning not to give two weeks’ notice is that employees should always consult an employee’s rights lawyer before taking any action. An employment attorney can help you to either resolve the situation or make sure that you have taken the proper steps to document your claims before you walk out the door.

Do I have a claim for hostile work environment because of coworker harassment?

Best Workplace Harassment Lawyer Answer: There is only one way to find out – call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our employment lawyers in Ohio, Michigan, and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


This discrimination, harassment and employment law website is an advertisement. The materials available at the top of this hostile work environment and constructive discharge page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Can I sue my employer because my coworkers forced me to quit by constantly harassing me”, “How much evidence do I need to prove that I am working in a hostile work environment,” “the guys that I work with keep showing me porn,” or “I quit today because I couldn’t deal with the racial harassment anymore,” it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

"" "