WHEN EMPLOYEES DIDN’T KNOW WHEN ENOUGH WAS ENOUGH: THE CIRCUIT SPLIT THAT CREATED THE DECISION

Abstract

Pat Jameson has begun a corporate job with new co-workers and a new supervisor. Pat has finally caught a break after months of searching and landed a good job that pays a minimal base salary with a commission on each sale. Six months into the job and everything is going well. Pat is finally able to pay the bills on time and even save a little extra on the side. One day at work, Pat is approached by a supervisor, Terry, who makes a sexual advancement. Pat brushes it off and pays no attention, because this was only the first time. Unfortunately, over the next few months Terry, and other co-workers, continue to harass Pat by making inappropriate jokes and sexual advances. Although Pat attempts to pay them no attention, the advances persist to the point that it becomes a daily event. In an attempt to cease the harassment Pat approaches Terry, the co-workers, and the human resources department and asks for the harassment to stop. Terry, as punishment for Pat’s request, “relocates” all of Pat’s current customers and gives them to Pat’s co-workers. Over the following weeks the harassment increases to the point that Pat begins to have anxiety attacks, and Pat’s work performance slips due to the constant barrage of harassment. Terry then demotes Pat because Pat will not acquiesce to the advances, but says that the demotion is due to poor work performance. Pat receives a reduction in pay because of the demotion and is now struggling to pay rent or provide for the family. What can Pat do? Can Pat quit? The little money Pat receives is necessary for living expenses. It took Pat months to find this job, and Pat is concerned it may be months before another suitable position is available. After the harassment continues Pat finally says enough is enough and gives the 2016] Constructive Discharge 487 required two-week notice. Thereafter, Pat hears that there is a legal claim against employers for making working conditions so terrible that the worker feels compelled to resign—constructive discharge. Pat visits with an attorney who asks, “When do you think a reasonable employee in your case would have felt compelled to resign?” Pat stares at him blankly, having no idea at what point a “reasonable person” would have felt compelled to resign. It never crossed Pat’s mind to quit until the harassment caused physical illness. How could Pat quit with all of the expenses of daily living? The attorney then politely tells Pat, “The date which a reasonable person would have felt compelled to resign matters, because when a reasonable person would have felt compelled to leave is when a constructive claim accrued. Unfortunately, if you do not take action within a certain period of time you may no longer have a claim.” After further discussion, Pat discovers the bad news—Pat no longer has a constructive discharge claim. In order to bring a constructive discharge claim, Pat was supposed to quit when a reasonable person would have felt compelled to resign. Then Pat was supposed to contact the attorney and bring a constructive discharge claim within the appropriate amount of time. But how could Pat quit? Pat needed the money, and was afraid that another position would not be available. This was the harsh reality of constructive discharge claims in some federal circuit courts. The focus of this Comment is to outline the circuit split which necessitated the Supreme Court’s decision in Green v. Brennan. Specifically, this Comment explores why the Court’s decision in Green was not only necessary but jurisprudentially accurate. The decision resolves a circuit split that negatively affected employees, employers, and courts. This Comment first provides in Sections II and III a brief summary of the history of constructive discharge and the effect of discrimination in the workplace. Next, Section IV focuses on the general standard of proof for a constructive discharge claim today. Section V then discusses the previous circuit split as to when a constructive discharge claim accrues. Thereafter, the Comment analyzes when a constructive discharge claim accrues in Louisiana. Next, the Comment discusses the wavering Fifth Circuit; and finally, Section VI proposes why the Supreme correctly sided with the notice/resignation circuits.