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When sexual harassment makes you quit, you may have been fired

Federal and New York courts have long recognized a doctrine of what's called "constructive termination."

In cases of constructive termination, an employee quits. But the law considers the employee to have been fired.

Why quitting can be firing

In these instances, the employer creates a work situation so unusually intolerable that any reasonable person in the same situation would also feel compelled to quit.

To fit the legal definition, the employer must either have the goal of making the employee quit or simply know how intolerable the situation is.

Courts look for an ongoing pattern of such behavior or for incidents, or even one incident, of obviously and exceptionally bad behavior.

Constructive termination without harassment

The doctrine of constructive termination doesn't require sexual harassment.

Nor does it require discrimination or harassment on any of the bases most of us recognize so well today, such as gender, race, sexual orientation, disability, age and so forth.

A bar owner might demand that a bartender serve alcohol to obviously underage patrons. That bartender may rightfully worry that they'll be arrested by the police and/or sued, for example, if the youngster dies in an car crash.

If a mechanic is forced to roll back the odometers in cars on a sales floor, a serious fraud under federal law, they might rightfully fear for their future.

In both cases, the employees may decide they have no choice about quitting. Their resignations might be treated in court as if they were wrongfully terminated.

Sexual harassment can lead to constructive termination

Sexual harassment in the workplace is illegal no matter how you look at it.

The Civil Rights Act of 1964 is a core basis for sexual harassment claims in the United States and other federal and many state laws confirm this and strengthen it.

Many forms of sexual harassment and discrimination involve job dismissal in particular, as in cases of quid pro quo or retaliation for harassment complaints.

The doctrine of constructive termination, where quitting is recognized as wrongful termination, is a reminder that quitting is not necessarily admitting defeat. It may not be the end of the story and it may not even be quitting.

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