Sex discrimination can take many forms. It can be obvious – such as a pay discrepancy between men and women performing the same tasks; or it can be subtle – such as a slow failure to promote a woman despite qualifications over a longer period. Sometimes sex discrimination can also be extreme, such as the case where the victim faces clear hostility from a superior and/or co-worker on an ongoing basis, is forced to listen to constant derogatory statements, or is subjected to unwanted advances from a supervisor or co-worker, despite complaining (link).
Cases of sex discrimination in New York often end with the victim being fired. Sometimes, however, the victim is not fired, and instead is forced to live with the ongoing discrimination day to day. When this happens should the victim keep enduring, or should she resign from the job?
A constructive discharge occurs when an employer does not formally terminate an employee, but instead makes it so difficult for the employee to work that she realistically has no other choice than quit. The hostile work environment is so severe that to continue working would be unreasonable.
Generally, the law – including Title VII and the New York State Human Rights Law – protects victims of sex discrimination from both termination based on discrimination as well as constructive discharge because of a hostile work environment based on discrimination.
So, does this mean that if you are facing sex discrimination at work, you should quit your job? Not necessarily.
When an employee is fired in close time to acts of discrimination or shortly after making a complaint of sex discrimination, it becomes easier to argue that the sex discrimination was a motivating factor (link) in the decision to fire the employee.
When a victim quits the standard on the victim is somewhat different, and requires that the victim establish that the work environment was so severe, the sex discrimination so pervasive, that a reasonable person in the victim's situation would not have been able to continue the work.
This can be a difficult standard to meet because, of course, what is “reasonable” to one person is often not “reasonable” to another. For example:
Melissa (link), our former client who received nearly daily obscene comments and multiple notes that were perceived as threatening, was in our opinion working in a hostile environment, and was constructively discharged as a result.
Occasional statements by co-workers, a random statement by the boss, or a one-time attempt by a co-worker/supervisor to engage in a relationship with the victim are not likely legally sufficient to support a claim for constructive discharge. In those situations, the employee would likely be better served making a formal written complaint (link) first and giving the employer the opportunity to investigate the claims of sex discrimination. If the situation does not improve, or gets worse, the employee may then have sufficient grounds to resign.
It is important to keep the “reasonable person” standard in mind when thinking about quitting your job because you are the victim of sex discrimination. While there are obviously certain situations where the victim simply feels she has no choice but to quit, there are others where doing so may either be premature or may ultimately hurt the victim's sex discrimination complaint. New York courts can be tough on claims of constructive discharge based upon a hostile work environment, so consider all of your options before taking any action is critical.
If you have questions about sex discrimination in New York contact us today.
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