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"Constructive dismissal" due to hostile work environment?

Discussion in 'Termination: Firing & Resignation' started by Wigglewigglewiggle, Aug 25, 2020.

  1. Wigglewigglewiggle

    Wigglewigglewiggle Law Topic Starter New Member

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    Jurisdiction:
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    Hi,

    I have worked as a clerk at a small, family-owned business for several years. It's a very small operation - there are only three employees besides myself. For the most part, it's been a decent job for me. My boss has been very kind to me over the years, and done wonderful things for my family as well. But lately, our work environment has become more toxic and hostile, as my boss will constantly bring up politics and try to say the most volatile things in order to get a rise out of me or the other workers. Lately he's been proving to be unapologetically racist... He will loudly and proudly say terrible things about blacks, latinos and asians (he is white). When a non-white customer is present, my boss will be very kind to them and treat them like he's known them forever... but when they're not around, he has no problem making comments about the "dirty mexicans stealing American jobs", how "there's mexicans moving in down the street, I bet they're gonna steal my stuff!", how the Chinese created the coronavirus because they "eat bats" ... and so on. He casually uses the N-word and has made disparaging remarks about homosexuality, calling gays "freaks of nature" among other things. He will bring up political topics entirely unprompted, and say the most divisive things he can think of, usually resulting in an argument with at least one of us employees. It has become an extremely toxic environment to be in - some days are peaceful enough and we all get along and work together, then the next day it's relentless with racist rants and chaos. With politics being the way they have been these past few years, he really enjoys bringing up divisive topics, starting arguments, and saying derogatory things about other races as often as he can.

    Earlier this week was the breaking point for me. Completely unprompted, he began ranting about the Black Lives Matter movement, saying things like "if black lives matter so much why are they all killing each other in Chicago? Why are they murdering hundreds of their own babies every day" (referring to abortion). This went on for a while and I became increasingly upset. We ended up in an argument, which only resulted in him doubling down and saying even more racist things, this time about the Chinese. He said that since the coronavirus was "created" and spread by China, "maybe we should start killing all the Chinese people". Whether that was a serious suggestion or simply an attempt to get under my skin, I'm not sure, but regardless I'd had enough. I took off my apron, clocked out, told him "I quit" and walked out the door. There was plenty of work left to do, but I couldn't stand to be in that building for another second. Working there has caused me an inordinate amount of stress in recent months, resulting in many panic attacks as well as exacerbating my depression due to the incredibly toxic environment he has created.

    I don't wish for this post to sound political - it's not about the politics, it's about the work environment. If he simply kept his thoughts to himself and left me to do my work, we wouldn't have a problem. But he seems to enjoy getting a rise out of people, so he does this almost every day, and I reached a breaking point. There was one other employee who shared the same concerns as me, but he was fired a few weeks ago (unrelated reasons).

    Now I'm wondering, does what happened here amount to "constructive dismissal"? As I understand it, that's when an employee resigns due to an employer creating a hostile work environment... which sounds like an apt description of what transpired. But I'm not a lawyer. If this was constructive dismissal, what should I do?

    I would greatly appreciate any advice on this. Thank you for reading.
     
  2. zddoodah

    zddoodah Well-Known Member

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    The answers to your two questions are maybe, and you should consult with a local employment law attorney.
     
    justblue likes this.
  3. army judge

    army judge Super Moderator

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    Probably not, but you can consult a California attorney experienced in employment or labor law to discuss your situation in more detail. Most attorneys offer the initial consultation at no cost to a potential client.





    To succeed on a claim for constructive discharge, you must be able to prove at least three elements:

    1) Your employer was trying to force you to resign by intentionally and knowingly creating an employment environment that was intolerable and aggravated; This unbearable, hostile workplace gave you no choice but to resign; and Your employer was motivated to get rid of you for illegal, retaliatory or discriminatory reasons.

    Note: It is not enough that your employment environment is merely unpleasant.
    It must be so unbearable that any employee in your position would feel obligated to quit.
    In addition, your employer must have known that you found the conditions intolerable.


    While it is not necessary to show that your employer actually engaged in the retaliatory actions, you must at least be able to show your employer knowingly permitted the intolerable conduct to occur.


    California sets a relatively high bar for proving that a resignation qualifies as a constructive discharge, it is important to recognize the signs that you may have such a claim after resigning.

    Some examples include:

    >> A repeated episode of yelling at an employee;
    >> Continuing instances of disparaging or intimidating a worker;
    >> Badgering and harassment;
    >> Reduction in the employee’s responsibilities;
    >> Changing shifts and hours;
    >> Unfair, unreasonable performance evaluations;
    >> Putting the employee at risk of injury through a work project or assignment; and,
    >> Transfer to a distant branch or department;
    Note that none of these scenarios will, on their own, lead to a finding of constructive discharge.

    The determination is highly case-specific and based upon the particular circumstances.

    California courts have held that some acts do not support a claim when not accompanied by other evidence, including:

    >>> A cut in pay, hours, or benefits;
    >>> Demotion;
    >>> Promotion of other employees;
    >>> A single episode of mistreatment;
    >>> Other acts harmful to the employee.

    Additional reading:

    "At-Will" Employment in California: What it Actually Means Under California Law
     
  4. mightymoose

    mightymoose Moderator

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    I suspect that pursuing this would not produce the results you seek. You quit voluntarily.
     
  5. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    There are at least two hurdles to clear here.

    1. Is the claim going to be a discrimination case? And were YOU discriminated against because YOU are in a protected class. It isn't yet illegal to be racist in the US. It is only if you act upon that racist leanings that one breaks the law.

    If you are going to have any chance with this case be glad it happened in California if for no other reason than Federal EEOC cases require more employees at the workplace than you describe.

    2. Did you take any action to deal with the environment before you quit? Did you tell the owner that you were offended by the comments?
     
  6. Wigglewigglewiggle

    Wigglewigglewiggle Law Topic Starter New Member

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    1. No, I'm also white, so I was not being discriminated against. I was just bothered by the extreme racism. I know it's not illegal to be a racist, I'm just concerned about the hostile work environment that he created with his behavior, which resulted in me needing to quit.

    2. Yes, he knows I'm offended by it. It's not the first time this has happened, and I have voiced my feelings many times. It just makes it worse. It often felt like he was looking for conflict, and says these things in order to provoke a reaction and start a fight.

    I appreciate the replies, it sounds like this is nothing worth pursuing.
     
  7. justblue

    justblue Well-Known Member

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    As zddoodah stated in post #2, you should consult with an employment law attorney. Get some referrals from the California Bar Association...you may be able to get a free or low cost consultation.

    The State Bar of California
     

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