Employers looking to eliminate "problem employees" may
take actions that put their company at risk. An employee who quits may
still claim that his/her employer made working conditions intolerable.
This article explores how employers can avoid the danger of
"constructive discharge" litigation by practicing good human
Supervisors often assume that when an employee resigns, the company
is "off the hook" -- i.e., there will be no employee lawsuits
to recover post-resignation economic damages. An employer may heave a
sigh of relief when a troublesome employee turns in his or her
resignation. There is a feeling of security. After all, the employee
quit voluntarily, so there should be no basis for wrongful discharge
Not always true. In fact, employees who tender their own
resignation can -- and do -- sue their employers after the fact when
they believe that they were forced to leave by that employer's
actions. The argument is legally known as "constructive
discharge" and it's causing headaches for many companies that
thought they were off the hook.
Constructive discharge can cover a variety of employee complaints
stemming from alleged unfair labor practices, discrimination under Equal
Employment Opportunity laws or violations of the Americans with
Disabilities Act (27). If constructive discharge is proven, the
penalties can be severe, including back pay and damages to compensate
for the employee's loss of future earnings from the job (based on
remaining work years and how long it will take to find a similar job).
Penalties can also include attorney's fees, and even compensatory
damages for pain and suffering or mental distress. In addition to
compensatory damage, courts may award "punitive damages" --
intended to punish an employer for wrongful behavior. Punitive damages
can run into millions of dollars, so they're not something to be
taken lightly (Wilson v. Monarch Paper Co., 1991).
This paper reviews literature, legislation and current court
rulings on constructive discharge. It is designed to inform employers
and their agents about events that may lead to post-employment
litigation and how to avoid this situation. A good rule of thumb is to
practice fair and just treatment of all employees, continuously upgrade
working conditions, document performance, use good communication,
provide grievance procedures and educate managers -- i.e., practice good
human resource management.
While constructive discharge is not a new phenomenon, current laws
and court logic make employee claims more likely and easier to win than
ever before. In short, this is a subject few companies can afford to
Constructive Discharge -- By Definition
Constructive discharge involves forcing an employee out of a job
with an ultimatum to either resign or face one of several unpleasant
consequences -- for example, demotion, reassignment or intolerable
working conditions (33). Constructive discharge is a "tort" or
civil wrong that generally occurs when there is a legal basis preventing
the employee from being discharged openly (i.e., a contract or
collective bargaining agreement) (23).
To prevail on claims of constructive discharge, employees must
demonstrate that their employers deliberately made working conditions
intolerable, forcing them to quit (14). Specifically, the former
employee must charge and prove two elements to be entitled to future
compensatory damages: 1) the "deliberateness" of the
employer's actions; and 2) the "intolerability" of the
There is a large measure of judgment involved in court decisions
regarding constructive discharge, and each of the elements is highly
subjective. Courts, however, have established - and are continuing to
establish - guidelines around the areas of deliberateness and
intolerability, which will be explored now.
The Federal Circuit Courts of Appeal are divided about what an
employee must show to prove the deliberateness of an employer's
actions. A minority of these courts (specifically, the Fourth and Eighth
Circuit Courts of Appeal) requires that in addition to intolerable
working conditions, the employee must show that his/her employer's
activities were deliberately intended to force the employee to quit This
introduces a large element of subjectivity - increasing the burden of
proof for employees and providing a substantial advantage for employers.
The element of deliberateness varies by case and state. In some
states, the burden of proof is tougher than others. That is, the
employee has to prove that working conditions were so intolerable that
he/she was forced to quit Also that the employer knew the effect of the
unbearable actions and conditions, and could have remedied them but
chose not to (27). In some cases, the employee even has to show that the
employer created or knowingly permitted the intolerable working
conditions. Largely due to its subjective characteristics, the concept
of deliberateness has been under attack for many years (3,11).
The following is a look at a few court rulings and landmark
decisions that have shaped the course of constructive discharge over the
Turner v. Anheuser-Busch, Inc., 1994. James Turner worked for
Anheuser-Busch, Inc. (ABI), where he had received "good"
performance evaluations except for a single December 1984 review. Turner
asserted that he was subjected to a "campaign of harassment,"
including being reassigned to a different department, after he informed
his superior that other employees had violated state liquor laws,
internal company policies and provisions of the collective bargaining
Four years later, Turner received a "needs
improvement"' on his evaluation, which he challenged. A few
days after that, Turner resigned and filed an action against ABI,
claiming discrimination, constructive wrongful discharge in violation of
public policy, breach of contract, and intentional and negligent
infliction of emotional distress.
The Court of Appeals allowed only the public policy claim to
proceed, ruling that the long list of ABI's alleged wrongful
actions represented a triable case of constructive discharge. The
California Supreme Court recognized that in an attempt to avoid wrongful
discharge liability, an employer may refrain from actually firing an
employee, "preferring instead to engage in conduct causing him or
her to quit."
The court ruled that such a constructive discharge is legally
regarded as a "firing," rather than a "resignation,"
when: "1) the employee is forced to resign due to actions and
conditions so intolerable or aggravated at the time of the
employee's resignation that a reasonable employer would have
realized that a reasonable person in the employee's position would
have been compelled to resign; and 2) the employer or its effective
representatives, such as officers, directors, managing agents or
supervisory employees, had actual knowledge of the intolerable actions
and conditions and their impact on the employee, and could have remedied
the situation but did not."
This ruling is a departure from earlier decisions of the California
Courts of Appeal, which held that mere constructive knowledge of the
intolerable working conditions could justify an employee's
resignation as a constructive discharge. Based on the new rules, the
court found that Turner failed to show a constructive wrongful
discharge. That's because there was no evidence that Turner's
job was made so intolerable that a reasonable person in his position
would have felt compelled to resign. The court, accordingly, upheld
summary judgment in favor of dismissing Turner's claims.
Martin v. Cavalier Hotel Corp., 1995. The plaintiff in Martin
alleged that her immediate supervisor (the general manager and vice
president of Cavalier Hotel Corp. and a member of its board of
directors) engaged in outrageous and repeated acts of sexual misconduct
Martin testified that she submitted to Daniel Batchelor's demands
because "when he tells you to do something, you do it or
else." After five years of employment, she ultimately decided that
she "couldn't handle what he was doing" and resigned.
Martin then filed a multiple count complaint against both Cavalier
and Batchelor, seeking to recover economic emotional distress damages.
Martin also alleged that she was constructively discharged as a result
of sexual harassment in violation of Title VII of the Civil Rights Act
of 1964. The jury found in favor of Martin (against Batchelor) on her
state common law claim of assault and battery, and also in favor of
Martin (against Cavalier this time) on her claim of constructive
Cavalier appealed - trying to reverse the trial court's
decision based on the Fourth Circuit's adherence to the minority
view. Cavalier asserted that Martin had proven that working conditions
were "intolerable," but not that Cavalier "intended"
she resign. Cavalier argued, rather, that the evidence demonstrated that
Batchelor "desired Martin to remain employed at the hotel so that
he could continue to assault her ..."
Once again, the court ruled in favor of Martin.
This more recent interpretation of the element of deliberateness
(employer intent) adopted a "reasonably foreseeable
consequence" standard (Martin v. Cavalier Hotel Corp., 1995). This
standard was based on court holdings that an employer may create an
"inference that it was attempting to force the plaintiff to
resign" (Paroline v. Unisys Corp., 1989) and that "if the
plaintiffs resignation was a reasonably foreseeable consequence of the
employer's actions, those actions were necessarily taken with the
intention of forcing the employee to quit" (Hukkanen v.
International Union of Operating Engineers, 1993; Martin v. Cavalier
Hotel Corp., 1995).
It is significant to note that the Martin ruling was made by the
Fourth Circuit Court of Appeals, which traditionally had required both
the deliberateness and intolerability elements to prove constructive
discharge. Thus, the Martin case represents a significant change in
court interpretation, concluding that specific, direct evidence of
employer intent is not required to prove the "deliberateness"
of an employer's actions.
Hukkanen v. International Union of Operating Engineers. The Martin
court then discussed Hukkanen v. International Union of Operating
Engineers, which also adheres to the minority view. Like Martin,
Hukkanen was a sexual harassment case, involving "similar though
less egregious facts" in that the supervisor "only threatened
to rape" the plaintiff. Like the employer in Martin, Hukkanen
argued that the supervisor's actions were not intended to force the
plaintiff to resign but, instead, were "intended to extract some
sort of sexual favor from the plaintiff or to provide a perverse sort of
amusement." The Eighth Circuit rejected this argument as
The Hukkanen court thus concluded that the plaintiff had produced
sufficient evidence that her resignation was the "reasonably
foreseeable consequence" of the employer's conduct. In other
words, the plaintiff had demonstrated the requisite employer intent.
Deliberateness: It's a Judgment Call. If there's one
conclusion that can be reached by all of the court rulings outlined
above it's this: Deliberateness is a judgment call made by the
court Factors taken into consideration include: Do all or most workers
on a specific job receive equal treatment? Should the employer have
foreseen that employees would not tolerate a given situation? Was the
employer (or should the employer have been) aware of the situation? Was
the situation brought to the employer's attention? What did the
employer do, and when, after being made aware of the "intolerable
A majority of the Circuit Courts of Appeal focuses exclusively on
the employee. They apply a "reasonableness standard" in
deciding whether an employer created an intolerable work condition that
forced an employee to quit; and in deciding whether a
"reasonable" person m the employee's position would feel
compelled to resign (14), (Turner v. Anheuser-Busch, Inc., 1994).
As mentioned earlier, the California Supreme Court has required
that the intolerable working condition element also take into account
whether the employer had actual knowledge of the intolerable conditions
and their impact on the employee, and could have remedied the situation
but did not (17).
Intolerability is still a judgment call. But judging the
intolerability of a work situation using a "reasonableness"
standard is the courts' attempt to make constructive discharge
decisions more objective. The standard also removes the irrational
distinction among victims of discrimination (who feel compelled to
quit), those whose employers want them to quit and those whose employers
create or permit equally intolerable conditions but do not want them to
quit (Martin v. Cavalier Hotel Corp, 1995).
Recent legislation in at least one state shows how constructive
litigation is definitely employee-focused. Arizona recently passed a law
making it unnecessary for employees to quit their jobs in order to get
an intolerable situation corrected (29). In addition, employers will no
longer be surprised by lawsuits filed by former employees claiming they
were forced by their company to quit their jobs. That's because,
under the new law, employers will have to inform their workers of the
provisions of constructive discharge legislation. Employees will be
required to give their employers a 15-day written notice of the problem,
and the employer will have another 15 days to take appropriate action.
If employees are not satisfied with the company's response and
still feel forced to quit by intolerable work conditions, they can file
a lawsuit claiming constructive discharge. The law also allows employees
to quit and sue without the 15-day notice if they believe intolerable
working conditions warrant quitting immediatel y (29).
"Workplace justice" literature, another facet of
constructive discharge, can be divided into two approaches -- observer
responses to the event itself and observer responses to the
administrative action taken by the agent (8,28).
The first approach is concerned with "retributive
justice," or the degree to which the observer believes the
violation deserves punishment (8). The observers' desire to seek
retribution will depend greatly on the degree to which they attribute
responsibility to the violator.
The second approach includes judgments of "distributive
justice" (the fairness of the degree or magnitude of reward or
punishment) and "procedural justice" (the fairness of the
process by which a plan is designed and implemented) (8). Procedural
justice can be subdivided into perceptions of the formal procedures and
"interactional justice" (fairness in the treatment of others)
An employer who creates or permits continually intolerable working
conditions violates three levels of justice: procedural, distributive
and interactional. This is true whether or not that employer is ever
taken to court (1,6).
No matter what form it takes, workplace justice is a serious
matter, posing ethical and moral issues. But even beyond these,
employers who practice justice in the workplace will reap significant
benefits (5,7,26,). These could include: retaining qualified and
productive employees, and minimizing the risk of constructive discharge
Like other issues surrounding constructive discharge, however,
workplace justice is a two-way street and more complex than it may
appear. For example, employers often feel justified when they encourage
a disruptive or troublesome employee to quit since constraints of other
laws prevent letting these employees go in a more direct way. On the
other hand, employees who are passed over for promotion, training or a
pay increase -- or are subjected to deserved discipline -- may quit and
bring a suit of constructive discharge to gain redress for a perceived
injustice (Molsness v. City of Walla Walla, 1996). Both employer and
employee may feel they are simply seeking to restore justice in the
workplace in these situations.
Molsness v. City of Walla Walla - A 'Perceived
Injustice.' A Washington State court ruled that a city engineer who
resigned so that he would not be fired had no claim against the city for
John R. Molsness became city engineer for Walla Walla, Wash., in
1987. His immediate supervisor was the city's public works
director, Duane Scroggins. Molsness and Scroggins had various conflicts
and, on February 18, 1992, Scroggins sent Molsness a memo, asking for
The memo mentioned Molsness' alleged "deficiencies"
in communication skills and asked Molsness to submit a letter of
resignation. "If not, I am prepared to take action," Scroggins
wrote. The memo concluded by praising Molsness' "many good,
strong technical points" and stating that Scroggins "would
just as soon part amicably and provide you with a positive
In January 1994, Molsness filed a lawsuit against the city,
alleging he was forced to resign and that this amounted to
Both the Washington trial court and the state Court of Appeals
ruled against Molsness. The appellate court stated: "Mr.
Molsness' resignation is not rendered involuntary simply because he
submitted it to avoid termination for cause, nor is it relevant that he
subjectively believed he had no choice but to resign His resignation was
voluntary unless he can demonstrate that Mr. Scroggins knew or believed
that the threatened termination could not be substantiated.
"Although his affidavit implies the threat was pretextual, Mr.
Molsness does not directly dispute the allegation that he lacked the
communication skills necessary for the position," the court added.
"His speculation is not enough."
Good Faith and Fair Dealing: Another Aspect of Workplace Justice.
Some courts have followed the doctrine of "implied covenant of good
faith and fair dealing," arguing that implied in every employment
contract is a duty of good faith and fair dealing in its performance and
enforcement (2,12). Thus, the legal, ethical, economic and moral issues
involved in constructive discharge can be discussed in the framework of
workplace justice or, more specifically, violation of psychological and
implied contracts with employees
Psychological Contracts. Psychological contracts are defined as
expectations about the reciprocal obligations that make up the
employee/employer relationship. More specifically, they are sets of
beliefs about what each party is entitled to receive, and is obligated
to give, in exchange for the other party's contribution (101).
When either party perceives that the other has failed to fulfill
one or more of the obligations of the psychological contract, there is a
perceived breach or violation. Research suggests that this violation
involves a strong emotional experience or "feelings of betrayal and
deeper psychological distress," resulting in anger, resentment, a
sense of injustice and wrongful harm, as well as a desire to bring suit
against the employer (24).
Additional research shows that violations of psychological
contracts have a negative impact on employee behavior, including
citizenship behavior (21); revenge or retaliation; sabotage, theft or
other aggressive actions (4,18,19,).
Violating psychological contracts can also lead to litigation --
such as constructive discharge -- which can cost the organization a lot
of money and damage its public image (13), (Wilson v. Monarch Paper Co.,
1991). One of the keys to maintaining a just workplace and avoiding such
damages is to develop and manage employee psychological contracts
Implied Contracts. Implied contracts are mutual obligations that
exist at the level of a particular relationship -- for example, between
two people or within an organization. They are patterns of obligations
that start at the level of the parties, but branch out to include the
relationship's broader social structure -- for example, the
surrounding legal or cultural environment Courts and the general public
usually view these contracts as arising from the conditions of long-term
employment and repeated cycles of exchange that are observable to
outsiders (Paroline v. Unisys Corp., 1989). Simply put, long-term
employment gives rise to mutual obligations of loyalty and allows others
to predict the parties' future interactions based on their past
Red Flag Situations - Typical Constructive Discharge Fare
A review of court cases, arbitration rulings and workplace
situations reveals that "red flag" events are frequently
involved in constructive discharge claims. These laws and rulings
originally addressed other issues, but have been applied to constructive
discharge suits as well. A brief review can provide a cautionary note
for both employers and employees:
The National Labor Relations Act This law (Section 8(a) (3))
prohibits an employer from acting to encourage or discourage membership
in labor organizations. Thus, an employer must not retaliate against
employees who are active in, or supportive of; union activity. Forcing
these employees to quit by placing them in intolerable work situations
would normally be considered constructive discharge (Ivers v. American
Potash & Chemical Company, 1938).
Title VII of the Civil Rights Act of 1964. This section of the
Civil Rights Act prohibits discrimination on the basis of race,
religion, sex, color or national origin. Any attempt to encourage
members of a protected group to quit through unjustified differential
treatment would violate this law and may be considered constructive
discharge (Young v. Southwestern Savings & Loan Association, 1975).
Age Discrimination in Employment Act (ADEA). This law prohibits
discrimination based on age. It protects workers over 40 years old.
Often such workers are highly paid because of experience and seniority.
Cost cuffing policies might suggest reducing the number of highly paid
workers. Although terminating such workers without valid exemptions is
not addressed by ADEA, it has been rejected by the courts if "the
intent and effect is to eliminate workers who have built up, through
years of satisfactory service, higher salaries than their younger
counterparts" (Metz v. Transit Mix, Inc., 1987).
The Employment Protection (Consolidation) Act of 1978. This law
provides that employees be viewed as having been dismissed if they
terminate their employment contract, with or without notice, because of
the employer's conduct Employees can, therefore, claim constructive
discharge if they resign when their employer threatens to terminate the
employment contract by due notice if they refuse to agree to a change in
employment conditions (Wiles v. Greenaway Harrison, Ltd., 1994).
Americans with Disabilities Act (ADA).
The ADA prohibits discrimination in employment matters on the basis
of disability. If an employee develops or exacerbates a disability that
requires reasonable accommodations -- and the employer responds by
forcing that person to quit -- that could very likely be considered
constructive discharge (EEOC v. MC Security, 1993).
As we've seen in this paper, constructive discharge situations
are normally precipitated by constraints -- constraints that legally
hamper an employer's ability to terminate employees. The problem
is: These laws don't always clarify what constitutes satisfactory
job performance and which behaviors warrant dismissal. And they
certainly can't always rectify the discrepancy between what an
employee and employer might perceive to be acceptable -- or unacceptable
-- behavior. That's the bad news.
The good news is that there are courses of action you, as an
employer, can take to address constructive discharge issues and avoid
costly claims. Although it may not be possible to prevent employees from
suing, there are steps you can take to reduce the incidence of and/or
strengthen defenses against a constructive discharge claim. We've
grouped these actions into two broad categories: Strengthening defenses
and managing expectations (with some of the recommendations applying to
both categories) ([14,27]).
Educate Managers About Constructive Discharge. Be sure that all
managers understand that they must not take any action designed to force
an employee to quit
Lobby for Legislative Change. As mentioned earlier in this paper,
at least one state (Arizona) has passed a law requiring employers to
inform their employees of the provisions of constructive discharge. This
law promotes awareness and sets the stage for mutual problem solving.
With enough lobbying and concern, more states may pass similar
Establish a Formal Grievance Process and Communicate It. This gives
employees a channel for airing complaints before they decide to quit In
addition, failure to take advantage of grievance procedures will count
against an employee later if he or she quits and claims it was really
Investigate All Employee Complaints. If an employee's
complaints are deemed valid, be sure to rectify the problems to head off
future lawsuits. If they are not rectified, explain why your company
operates as it does in the area in question. If employees are still not
satisfied, attempt to settle the problem through an ombudsman, a
peer-review process or mediation.
Document All Adverse Decisions. Managers should be trained to write
down their reasons for all adverse decisions and to document that the
employees involved were advised of these reasons.
Discipline Employees for Unsatisfactory Work. Employees who
aren't aware of performance problems might argue that their
employer harassed them for non-business-related reasons. To avoid
misunderstanding, specify the behavior or performance problem that needs
to be corrected (a carefully written job description will help) and
document employees' performance reviews. This will support the
position that any discipline is work-related.
Don't Change Wages, Hours or Conditions of Employment To
Induce an Employee To Resign. If an employee's behavior is
unsatisfactory, follow formally established policies and procedures for
disciplining and discharging workers.
Don't Threaten To Fire an Employee Unless There Is Just Cause
... and Unless You're Willing To Really Do It! Empty threats rarely
prove effective in deterring poor performance or behavior. Employees
will recognize them as meaningless and personally hurtful. As a result,
they may be more inclined to sue.
Request a Letter of Resignation. Employees who quit will find it
more difficult to claim that they were fired at a later date. Have them
specify their reasons for quitting in a formal resignation letter. This
documentation will help fortify the employer's position if an
employee claims in court that he or she quit for a different reason. (Be
aware, however, that the employee might still claim that the letter was
signed under duress.)
Require Witnessed Exit Interviews of All Employees and Record Them.
If an employee quits with hard feelings about working conditions, you
still may able to iron out any differences before the employee becomes
aggravated enough to file a lawsuit. Don't try to talk an employee
out of quitting. The record will support your defense if the employee
claims, in court, a different reason for quitting than the one offered
in the exit interview.
The Best Advice: Deal with Employees Fairly and Honestly. As
always, you should treat all employees with dignity and respect Allow
them to air grievances, correct problems with working conditions and
discipline them fairly for unsatisfactory work. Do not attempt to
encourage a problem employee to leave by making his or her life
miserable. It could backfire and make your life miserable.
Managers can promote, demote, transfer and discipline employees
when warranted by job behavior. There is sometimes a fine line, however,
between appropriate managerial action and behavior that is "so
unbearable that a reasonable person would feel compelled to quit"
Judgment in such cases may be based largely on the subjective
expectations of the parties involved. Managing expectations, therefore,
can be important in reducing claims of constructive discharge. Some
approaches to managing expectations follow:
Realistic Job Previews (RJPs). One way to address unrealistic
expectations is to use RJPs (32) - presenting the newcomer with an
accurate preview of the new job and employer, so that his/her
expectations will be closer to reality. A reasonable match may reduce
perceptions of unfulfilled promises. Candid, frequent discussions, not
limited to the time of hire, can also clarify and update obligations and
Orientation. Help employees deal with stress; help them understand
their own and their employer's obligations (32).
Periodic Employee Opinion Surveys.
Using open-end survey questions that elicit employee
interpretations of company practices can provide useful insights. You
can clear up misunderstandings, and you may be able to revise certain
policies based on points of contention. A committee made up of employees
and managers should analyze the survey so there can be no charge of
"cooking the books." You should also discuss survey results
with all employees in open meetings.
Periodic Focus Groups. Discussion groups composed of 6-10
individuals maybe useful (15). You may want to focus your discussion on
specific issues concerning the employment relationship, but set aside
time for "what's on your mind" discussions too.
Discussion group membership should represent various contingencies with
their different backgrounds and perspectives.
Training Interviewers and Public Relations People. People who
interview prospective employees and people who convey the image of your
company to the public are very powerful people. Train them to make sure
they send the messages you want to send, and create the perceptions you
want to create. Careful training, structure and guidance can help
control messages you send and influence how they are perceived.
No False Promises in Your Publications.
Employer publications are a basis for employee expectations and a
standard for comparison between expectations and reality. Exercise
extreme care to ensure that these publications do not create false
expectations, perceptions of unfairness or, worse yet, a basis for legal
Clear, Continuous Communication. Honest, clear communication is a
must Employees are normally willing to accept change when they
understand why it is necessary - especially when they are kept informed
and understand that there is no better way to proceed. Employers should
acknowledge earlier promises and attempt to compensate in other ways,
whenever possible, when they can't fulfill these promises.
What's more, it's to your benefit -- and your employees'
-- to communicate anticipated changes that involve the employment
relationship as far in advance as possible.
Constructive discharge may involve a number of employee claims
against the employer. Such claims normally stem from alleged unfair
treatment by the employer and, if proven, can be very costly. Normally
such claims arise when an employer is prevented from terminating an
employee by some form of contractual or legal constraint. Confronted
with such constraints, an employer may engage in activities intended to
force a problem employee to quit. And if an employee is forced to quit,
the courts may not consider his/her action voluntary.
Although divided on certain issues, the courts basically require
two elements of proof in constructive discharge claims: deliberateness
(the employer intended to force the employee to quit) and intolerability
(the employer created a work condition so intolerable that a reasonable
person would have felt forced to quit). Most courts, however, require
only the intolerability test, and even the minority that have
traditionally required both elements appear to be moving away from the
requirement of deliberateness.
Workplace justice is a key factor in constructive discharge court
rulings. This concept applies equally to employers and employees. It is
unjust for an employer to construct an intolerable work situation for an
employee in an effort to force him/her to quit. It is equally unjust for
an employee who is passed over for some organizational reward to quit
and later claim constructive discharge. The implied covenant of good
faith and fair dealing applies to both parties.
Different workplace justice perspectives generally arise from
different expectations concerning the employment relationship or the
psychological contract. In addition, there are several laws, written to
address other issues, that constrain employer activities and set the
stage for constructive discharge claims.
The courses of action we recommend for avoiding constructive
discharge claims include educating employees about the law, lobbying for
change, formalizing and communicating grievance procedures,
investigating complaints, and appropriately disciplining and managing
expectations. In short, your best practice is to follow good human
resource practices that promote workplace justice and good faith
(1.) Alexander, S. and M. Ruderman. "The Role of Procedural
and Distributive Justice in Organizational Behavior." Social
Justice Research, 1987, 1:177-198.
(2.) Bennett-Alexander, D. and L Pincus. Employment Law for
Business, 2nd ed., Boston, MA Irwin-McGraw-Hill, 1998.
(3.) Finnegan, S. "Constructive Discharge under Title VII and
the ADEA." University of Chicago Law Review, 1986, 53; University
of Chicago L Rev. 51, 2 of 6.
(4.) Fisher, J. and R. Barron. "An Equity-Based Model of
Vandalism." Population and Environments, 1992, 5:182-200.
(5.) Folger, R. and M. Konovsky. "Effects of Procedural and
Distributive Justice on Reactions to Pay Raise Decisions." Academy
of Management Journal, 1989,32:115-130.
(6.) Fryxell, G. and M. Gordon. "Workplace Justice and Job
Satisfaction as Predictors of Satisfaction with Union and
Management." Academy of Management Journa 1989, 32: 851-866.
(7.) Gilliand, S. "Fairness from the Applicant's
Perspective: Reactions to Employee Selection Procedures."
International Journal of Selection and Assessment, 1995, 3: 11-19.
(8.) Greenberg, J. "Employee Theft as a Reaction to
Underpayment Inequity: The Hidden Cost of Pay Cuts ."Journal
ofApplied Psychology, 1990, 75: 561-568; "A Taxonomy of
Organizational Justice Theories." Academy of Management Review,
1987, 12: 9-22
(9.) Guzzo, R. and K. Noonan. "Human Resource Practices as
Communications and the Psychological Contract." Human Resource
Management, 1994, 33: 449-462.
(10.) Levinson, H., C. Price, K Munden, H. Mandl and C. Solley.
"Men, Management, and Mental Health." Cambridge, MA Harvard
University Press, 1962.
(11.) Lieb, H. "Constructive Discharge Under Section 8(a) (3)
of the National Labor Relations Act: A Study of Undue Concern over
Motives." Industrial Relations Law Journal, 1985, 7: 143-177.
(12.) MacArthur, M. and P. Susser. "Firing Line New Limits on
Employee Terminations." Association Management, April 1984,81,85.
(13.) McLean Parks, J. and D. Schmedemann. "When Promises
Become Contracts: Implied Contract and Handbook Provisions on Job
Security." Human Resource Management, 1994, 33: 403-423.
(14.) Mesritz, G. "Constructive Discharge and Employer Intent:
Are the Courts Split over a Distinction without a Difference?"
Employee Relations Law, 1996, 21:91-107.
(15.) Morgan, D. Focus Groups as Qualitative Research, Newbury
Park, CA Sage, 1988.
(16.) Morrison, D. "Psychological Contracts and Change."
Human Resource Management, 1994, 33:353-372.
(17.) Murphy, B., W. Barlow and D. Hatch. California Supreme Court,
(18.) Robinson, S. 'Trust and Breach of the Psychological
Contract." Administrative Science Quarterly, in press.
(19.) Robinson, S. and R. Bennett. "Workplace Deviance: Its
Definition, Its Nature and Its Causes." In R. Lewicki, B. Sheppard
and R. Bies (eds.) Research on Negotiation in Organizations, Greenwich,
CT: JAI Press, 6, in press.
(20.) Robinson, S., M. Draatz and D. Rousseau. "Changing
Obligations and the Psychological Contract: A Longitudinal Study."
Academy of Management Journal, 1994, 37: 137-152.
(21.) Robinson, S. and E. Morrison. "Organizational
Citizenship Behavior: A Psychological Contract Perspective."
Journal of Organizational Behavior, 1995,16: 289-298.
(22.) Robinson, S. and D. Rousseau. "Violating the
Psychological Contract Not the Exception but the Norm." Journal of
Organizational Behavior, 1994, 15: 245-259.
(23.) Rothstein, M., E. Schroeder, E. Shoben and L. Vandervelde.
Human Resources and the Law, Washington, D.C.: Bureau of National
Affairs, Inc., 1994.
(24.) Rousseau, D. "Psychological and Implied Contracts in
Organizations." Employee Responsibilities and Rights Journal, 1989,
2:121-139; "Psychological Contracts in Organizations: Understanding
Written and Underwritten Agreements." Thousand Oaks, CA: Sage
Publications, Inc., 1995
(25.) Rousseau, D. and J. McLean Parks. "The Contracts of
Individuals and Organizations." In L.L. Cummings and B.M. Stow
(eds.) Research in Organization Behavior, Greenwich, CT: JAI Press,
(26.) Steiner, D.D. and S.W. Gilliand. "Fairness Reactions to
Personnel Selection Techniques in France and the United States."
Journal of Applied Psychology, 1996, 81:134-141.
(27.) Thorne, J. "Who Says Quitters Never Win." Small
Business Reports, 1994, 19:45-48.
(28.) Trevino, L. "The Social Effects of Punishment in
Organizations: A justice Perspective." Academy of Management
Review, 1992, 17:647-676.
(29.) Turco, F. "Law Expected To Put Employee Suits to
Rest." Business Journal, 1997, 17:20-21.
(30.) Tyler, R and R. Bies. "Beyond Formal Procedures: The
Interpersonal Context of Procedural Justice." In J.S. Carroll (Ed.)
Applied Social Psychology in Business Settings, New York:
Springer-Verlag, 1990, 63-93.
(31.) VanMaanen, J. (1976). "Breaking in: Socialization to
Work." In Dubin, R. (Ed.) Handbook of Work, Organization and
Society, Chicago: Rand McNally, 1976, 67-130.
(32.) Wanous, J. Organizational Entry, 2nd Ed. Reading, MA:
(33.) Weiss, D. "Fair, Square and Legal: Safe Hiring, Managing
and Firing Practices To Keep You and Your Company out of Court."
New York: AMACOM, 1995.
EEOC v. AIC Security, 820 F. Supp. 1060 (N.D. Ill. 1993).
Hukkanen v. International Union of Operating Engineers, 3F. 3rd 281
(8th Cir. 1993).
Ivers v. American Potash & Chemical Company 3 N.L.R.B. 410
(1937), enforced, 98 F. 2d 488 (9th Cir. 1938).
Martin v. Cavalier Hotel Corp., 48 F.3rd 1343 (4th Cir. 1995).
Metz v. Transit Mix, Inc., 828 F. 2nd 1202 (7th Cir. 1987).
Molsness v. City of Walla Walla , 928 P. 2nd 1108 (Wash App. 1996)
Paroline v. Unisys Corp., 879 F.2nd 100 (4th Cir. 1989).
Turner v. Anheuser-Busch. Inc. Cal. 4th 94 Daily Journal DAR 10373
July 25, (1994).
Wiles v. Greenaway Harrison, Ltd. Sol IRLB 2 (1994).
Wilson v. Monarch Paper Co., 939 F.2d1138, (5th Cir.) 1991.
Young v. Southwestern Savings & Loan Association, 509 F.2nd 140
(5th Cir. 1975).