Sexual harassment, retaliation, and constructive discharge. The trifecta of employment-discrimination claims. And all three were the subject of a recent decision from the 3d Circuit. The decision contains lots of interesting discussion points but I'll limit myself to just one for the purposes of this post.
The plaintiff-employee contended that she resigned because her boss called her a "bitch" during a meeting. The court explained that, to establish a constructive discharge, the employee must show that "the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." In determining whether the employee was forced to resign, the court looks to several factors, including whether she was threatened with discharge, encouraged to resign, demoted, subject to reduced pay, involuntarily transferred to a less desirable position, subject to a change in job responsibilities, or given poor performance evaluations.
So is being called a "bitch" at a meeting so bad that it could force an employee to quit?
You may be surprised to learn that the 3d Circuit did not answer this question in the negative. Nor did it find that this single incident was sufficient to constitute a constructive discharge.
Instead, it sent the question back to the trial court. The trial court had dismissed the claim based only on its dismissal of her sexual-harassment claim. Although the district court was correct when it determined that there cannot be a constructive discharge unless there was conduct over and above a hostile work environment. The district court held that, since there was no hostile work environment, there could not be a constructive-discharge claim. Although that theory is correct, the 3d Circuit explained, the district court had erroneously found that there was no hostile environment. Thus, the 3d Circuit directed the trial court to reevaluate the constructive-discharge claim after it had taken a second look at the hostile-environment claim.
Mandel v. M&Q Packaging Corp., No. 11-3193 (3d Cir. Jan. 14, 2013).