Last updated Dec. 29, 2017.
Discrimination and harassment on the job can inflict such mental and emotional stress that, understandably, many workers wonder whether they should simply just quit. Indeed, when faced with unwanted sexual advances from a supervisor, racially charged jokes from co-workers, or daily acts of petty retaliation, resigning may seem like the best — and only — option.
However, before you give your two weeks’ notice, you should understand that voluntarily resigning will most likely have an enormous impact on the legal recourse and unemployment benefits available to you.
Under the New Jersey Law Against Discrimination (the “LAD”), discrimination and harassment that is so egregious that it forces a worker to resign is known as “constructive discharge.” You may sue your employer for constructive discharge under the LAD; however, the legal standard for this type of claim is quite high and quite difficult to meet.
Hostile Work Environment Claims in New Jersey
By way of illustration, in order to bring a “hostile work environment” claim under the LAD, a worker must show “severe or pervasive” harassment. In contrast, a worker claiming constructive discharge must show conduct that is even worse than a “hostile work environment.”
The New Jersey Supreme Court ruled that a constructive discharge claim requires “conduct that is so intolerable that a reasonable person would be forced to resign rather than continue to endure it.” Shepherd v. Hunterdon Developmental Center, 174 N.J.1, 28 (2002). The Court described such conduct as “outrageous, coercive and unconscionable”. Id.
For this reason, instances where New Jersey courts actually found that constructive discharge occurred are few and far between. As such, garden-variety acts of harassment — being passed over for promotion, excluded from meetings and professional opportunities, being assigned fewer sales leads/territories and the like — are unlikely to support a constructive discharge suit. Even the occasional racist or sexist comment may not surmount the legal hurdle.
What does a successful claim for constructive discharge look like?
In Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), our United States Supreme Court decided whether a certain affirmative defense was available to employers in certain constructive discharge cases. Even so, since the Supreme Court also ruled that the plaintiff in Suders deserved to have her constructive discharge claim heard by a jury, the facts of her case help illustrate what a solid constructive discharge claim might look like.
In Suders, the plaintiff was a communications operator for a Pennsylvania police barracks. She alleged that the following conduct forced her to quit:
- She was constantly subjected to sexual harassment from day one of her employment.
- One supervisor regularly talked about bestiality in her presence.
- Supervisors regularly discussed oral sex in front of her.
- One supervisor regularly made obscene gestures in front of her, spread his legs apart while wearing spandex shorts in front of her, or otherwise referenced his genitals.
- Months into her employment, she complained to an Equal Opportunity Officer that she was being harassed and was afraid.
- Two days later, her supervisors had her arrested after accusing her of “company theft.” She had removed from the offices her computer skills exams, which her supervisors had told her she failed. In fact, they were never graded.
From Suder, we can conclude that employer conduct that is explicitly sexist/racist, physically threatening or bullying (such as being handcuffed and arrested), and constant and ongoing may support a successful claim of constructive discharge.
Remember: Your Unemployment Benefits are At Risk
Even if an employer’s actions are “so intolerable” as to show constructive discharge in a court of law, keep in mind that the New Jersey Department of Labor (DoL) might see it differently. If you quit your job due to discrimination and harassment, there is no guarantee that a DoL Hearing Officer will agree to grant you unemployment compensation — especially when your employer will likely argue that you simply resigned or “walked off” the job.
I’m thinking of quitting my job due to harassment. What should I do?
Given the strenuous standard for constructive discharge, any worker suffering discrimination or harassment should think very cautiously and strategically before voluntarily quitting. If you resign and a court decides that your employer’s conduct was not sufficiently “intolerable,” then you have lost the right to sue for economic damages. Moreover, you may lose needed unemployment benefits as well.
Accordingly, before quitting your job, call an employment attorney for advice. There may be legal options available to you, short of resignation, that you haven’t considered and that may provide a safer and more productive way to redress your harm. If you believe you are subject to workplace discrimination, harassment or retaliation, contact us online or call us at 609-243-0300 today for a free consultation.