Individuals frequently call for advice concerning the harassment and discrimination they experienced. They tell me they just couldn’t take it anymore and that going to work each day had become an anxiety-filled event, so they resigned from their employment. I assure them that they should not doubt the choice they made, because ultimately they did what they needed to stay happy and healthy. But often, under New Jersey law, that choice has limited, if not eliminated, their legal remedies.
In the employment discrimination context, "constructive discharge" is when an employer knowingly permits conditions of employment so intolerable that a reasonable person subject to them would resign. A victim of harassment/discrimination who resigned only has a cause of action for the loss of their job when a constructive discharge has occurred. The standard for constructive discharge is very high and courts consider the nature of the harassment, the closeness of the working relationship between the harasser and the victim, the victim’s use of the employer’s internal grievance procedures, and the responsiveness of the employer to the conduct along with other relevant circumstances.
The nature of the harassment must be outrageous, coercive and unconscionable. Coldness, rudeness, simple teasing, offhand comments, and isolated incidents have been found by New Jersey courts to be insufficient to successfully prove constructive discharge. In addition, the victim must have made every effort to remain employed, including making use of their employer’s internal grievance procedures.
Even if the harassment is outrageous and the victim makes efforts to remain employed, constructive discharge will not be found unless the employer “knowingly permitted” the conduct. This means that, upon finding out about the conduct, if the employer takes action to correct it so that it ends (for example, terminates, disciplines or separates the harasser from the victim), an employee who resigned will not be able to argue that they were constructively discharged.
While individuals who resigned from their position due to harassment or discrimination should nonetheless contact an attorney to assess their potential claims, my hope is that this blog entry reaches people before they quit. In order to protect your potential legal claims, you should contact an attorney at Green Savits while you are still employed. We will try our best to help you navigate the harassment or discrimination you are facing and hopefully find a way out of your job that will preserve your legal claims.
NOTE: this article only discusses legal remedies for job loss as a result of harassment or discrimination. An individual who has been or is currently being harassed may still have a claim against their employer for the harassing conduct itself.