Something is going on at work that is not quite right. Your employer is giving you a hard time about an accommodation of a disability or about taking breaks to pump breast milk, but it hasn't quite prevented you from doing what you need to do. A coworker is making sexually inappropriate or racially charged comments around you or to you, but your boss doesn't know. Your employer is investigating a complaint you made, but you think it's taking a long time or are afraid the investigation won't come out in your favor.
Should you quit? Or more specifically, should you quit with the idea that you will have legal recourse for your loss of employment?
The answer, of course, is it depends. But, more often than you may expect, the answer is no or, at least, not yet.
Taking sexual harassment as an example, the law is limited as to when an employee may quit and then sue for damages. First, an employee needs to demonstrate a hostile work environment, meaning that the harassment is so severe and pervasive that it alters the terms and conditions of the employment. (In layman's terms, it's so bad, you can't do your job). We note that “severe and pervasive” is the standard under federal law (Title VII). It used to be the law in New York as well, but the Human Rights Law was recently amended to loosen the standard to define harassment as “an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment.”
Then, to support a claim for money damages if you quit, the employee needs to show that the work environment is so intolerable, a reasonable person would need to leave the workplace. The legal term for this is a “constructive discharge”. What is unlikely to fall under these standards? Isolated inappropriate comments. Generalized rudeness. Potentially (under the case law) even an isolated incident of inappropriate touching.
And, on top of that, if the harasser is a coworker, the employer may have a defense if it doesn't know about the harassment or if you fail to utilize available complaint procedures. (The complaint requirement has also been loosened under recent amendments to the state Human Rights Law, but failure to utilize available complaint procedures remains a defense under federal law). In addition, you typically have an obligation to cooperate in an investigation and give the employer an opportunity to undertake one.
So, what should you do if you think your rights are being violated? We approach difficult employment situations from the perspective that, ideally, the employee would like to keep his or her job. So, we encourage the employee to try to work with the employer.
When it comes to disabilities, the law contemplates that the employee and employer will work together to determine a suitable accommodation. The law also contemplates that the employee will ask for what he or she needs – employers do not have to offer accommodations just because they have knowledge of a disability. The Family and Medical Leave Act (FMLA) does impose more of an obligation on an employer to notify an employee of his or her rights, but there is still an obligation to give notice of your serious health condition, provide information in a medical certification and, in the case of intermittent leave that's taken in smaller intervals, potentially working with the employer to avoid significant disruption.
When it comes to harassment, the law wants an employee who is being harassed by a coworker to complain and give the employer a chance to investigate and remedy the situation. Once an investigation starts, the complainant has an obligation to cooperate even if that means naming names and feeling uncomfortable.
Unless an employee is in danger (and that can be mental as well as physical), we typically suggest putting the ball in the employer's court. Give the employer the chance to the do the right – or wrong – thing and be the one to make the ultimate employment decision. Don't assume you know what the employer is going to do, and then take action preemptively. Don't act as if your employer is a mind reader or knows everything that is going on. Communicate, ask for what you need, and complain if your rights are being violated. Best case scenario, the employer will work with you or do the right thing, and you get to keep your job. Worst case, if you are fired or genuinely forced to quit, you will have put yourself in a stronger legal position.
We often receive calls from employees who, in our opinion, quit prematurely and have no legal recourse either because the employer was in the midst of or not given the chance to do the right thing, or because the work environment was not sufficiently hostile under the law. In those situations, the employee likely would have been better off complaining or making a written request for what they need and letting the situation play out. If they were then retaliated against for complaining or ultimately denied an accommodation, there would have been a stronger likelihood of legal recourse.
More often than not, when an employee quits his or her job it will be for personal wellbeing reasons, and without legal recourse. But if the idea that you will have legal recourse (meaning, for the purposes of this article, suing for lost wages now that you are out of work) is informing your decision as to whether you should quit, consider contacting an employment attorney first.
Nothing in this article should be construed as legal advice. Every situation is different. If you believe your rights are being violated, feel free to contact us. We are happy to see if we can help.