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How do you prove wrongful termination?

To establish a claim for wrongful termination, four elements are necessary when direct evidence is lacking: (1) the employee belonged to a protected class, (2) the employee was qualified for the job, (3) the employee was fired, and (4) either the replacement was from outside the protected class or individuals outside the protected class received better treatment.

Under Title VII of the Civil Rights Act of 1964, protected classes include race/color, gender, sexual orientation, gender identity, national origin, and religion. Likewise, age is protected under the Age Discrimination in Employment Act of 1967 (“ADEA”), and disability is protected under the Americans with Disabilities Act (“ADA”).

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What is a constructive discharge?

Typically, when employees talk about being forced to quit or retire, they are talking about being constructively discharged or constructively fired. Legally, “constructive discharge” is a legal term related that satisfies the third aspect of a wrongful termination claim under the Title VII, ADEA, and ADA. Constructive discharge happens when an employer’s discriminatory actions create such challenging working conditions that a reasonable person in the employee’s position would feel compelled to resign. In simpler terms, the employee must show they had no other option but to quit. The working conditions must be objectively unbearable, and the employee’s personal feelings about the situation don’t matter. In essence, an employee is considered constructively discharged when they can no longer tolerate a hostile work environment based on their protected class and choose to quit.

In the recent case of Hwang v. Nat’l Tech. & Eng’g Sols. of Sandia, LLC, No. 22-16396, 2024 WL 208139, at *1 (9th Cir. Jan. 19, 2024), the United States Court of Appeals for the Ninth Circuit held:

First, to establish constructive discharge due to intolerable working conditions, an employee must show the employer intentionally permitted working conditions so intolerable that a reasonable person in the employee’s position would have been compelled to resign. Green v. Brennan, 578 U.S. 547, 555 (2016) (federal law); Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1248-49 (1994) (state law). The working conditions must be so “severe” as to compel a reasonable employee to resign. See Green, 578 U.S. at 558; accord Cloud v. Casey, 76 Cal. App. 4th 895, 902 (1999) (“intolerable or aggravated”).

Essentially, the conditions must be based on a protected class and be so bad that the employee has to walk out the door right then and there – cannot tolerate it a minute longer.

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How do you screw up a constructive discharge claim?

The best way to severely damage a constructive discharge claim is for an employee to demonstrate that that workplace environment was not intolerable by agreeing or seeking to actually tolerate it a bit more. Our employment discrimination lawyers already pointed to the impact giving two weeks’ notice has on a constructive discharge claim. Again, the employee is actually saying, and usually in writing, “I’m staying two more weeks because I can still tolerate it.”

In Hwang, the Ninth Circuit Court of Appeals ended Robert Hwang’s forced retirement/constructive discharge claims in one sentence: “This claim is belied by his attempt to rescind his decision to retire.” Id. The Court reasoned that it could not be that bad if the employee wanted to voluntarily go back into the environment.

The morale of this story is that if you intend to pursue a constructive discharge claim, you should not give notice; you should not say nice things in your resignation letter; and you should not ask to come back. You should just quit and walk out the door because you have to show that it is so intolerable that you cannot work there another minute.

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Should I consult an attorney about my hostile work environment claim before quitting?

Yes! As you can see, there are a lot of ways to mess up your claims that a good employee’s rights lawyer can help you avoid, including writing your resignation. Since a consultation with Spitz, The Employee’s Law Firm is free and confidential, you best pick up the phone right now and call. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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This employment law website is an advertisement. The race, gender, national origin, sex, disability and age discrimination and harassment information in this wrongful termination blog and on this employee’s rights website is for educational reading only and should not be viewed or otherwise considered as giving direct legal advice. 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.

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