Wednesday, December 1, 2010

Don't take the law into your own hands

Don't take the law into your own hands. That's true in criminal law, but it's also true in employment law. I'm talking about constructive discharge. A word to the wise: if you bring a constructive discharge claim under Title VII or any other civil rights law, it will probably be dismissed.

The case is Miller v. Praxair, Inc., a summary order decided on November 24. Constructive discharge claims are a subset of employment discrimination claims, which normally require the plaintiff to be fired or demoted (or suffer some other adverse employment action). If the plaintiff quits her job, she can pursue the claim if she was constructive discharged. As the Second Circuit summarizes the standard, "[t]he inquiry is objective: Did the working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign."

That standard may sound workable for someone who quits his horrible job, but the courts rarely uphold constructive discharge claims. The courts do not want plaintiffs to take the law into their own hands. I've seen some strong constructive discharge claims thrown out of court, but this is not one of them. The plaintiff loses because she alleges working conditions that "largely amount to the sort of routine disagreements with supervisors or mild conditions that are simply insufficient to establish the sort of 'intolerable' working conditions necessary to a constructive discharge claim." In addition, after Miller resigned her position, "defendants made repeated attempts to convince her to stay, and, accordingly, no rational trier of fact could conclude that a reasonable person in her position would have felt that her employer deliberately sought to make her working conditions so intolerable that she had no choice but to resign."

Miller also claims she endured a hostile work environment. That claim is dismissed, also. She only comes up with an isolated incident that is not enough to "transform" the workplace. The Second Circuit (Kearse, McLaughlin and Livingston) writes, "Miller's strongest assertion -- that on several occasions defendant John Day referred to the termination of African American employees by saying that we just 'shot' a 'black male' -- is insufficient even if credited because for a hostile work environment to exist, the offending 'incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive."

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