Constructive Discharge under Title VII and the ADEA

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Constructive Discharge Under Title VII and the ADEA
Finnegan, Sheila. The University of Chicago Law Review. Chicago: Spring 1986. Vol. 53, Iss. 2; pg. 561, 20 pgs

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Constructive Discharge Under Title VII and
the ADEA
Consider two employees who are victims of sexual harrassment. The first employee is fired after she refuses to accede to the repeated sexual demands of her supervisor. The second employee is also propositioned,but considers the workingenvironmentso intolerable that she resigns before any adverse action is taken against her. Each woman then sues her employer under Title VII of the Civil Rights Act of 1964.1

Both employers may have violated Title VII.2 Even so, because of the way in which their employment was terminated the two employees may be entitled to different remedies. The first employee-who was fired-would presumptively be entitled to backpay for the wages lost after the date of firing.3In contrast, the 1 Pub. L. No.

88-352, ?? 701-716,78 Stat. 253 (1964) (codifiedas amendedat 42 U.S.C. ?? 2000e to 2000e-17 (1982)) [hereinaftercited as Title VII]. Section 703(a) of Title VII provides:
(a) It shall be an unlawfulemploymentpractice for an employer(1) to fail or refuse to hire or to dischargeany individual,or otherwiseto discriminate against any individual with respect to his compensation,terms, conditions, or privilegesof employment,because of such individual'srace, color, religion,sex, or national origin;or (2) to limit, segregate,or classify his employees or applicants for employmentin any way which would deprive or tend to deprive any individualof employmentopportunities or otherwiseadverselyaffect his status as an employee, because of such individual's race, color, religion,sex, or national origin. 42 U.S.C. ? 2000e-2(a) (1982).

In addition, section 704(a) makes it an unlawfulemploymentpractice for an employer to discriminateagainst an employeebecause the employeehas "opposedany practicemade an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participatedin any mannerin an investigation,proceeding,or hearing under this subchapter."42 U.S.C. ? 2000e-3(a) (1982).

2 The first employermight be liable for what is knownas "quid pro quo" harassment, while the second could be liable for the creation of an offensiveworkingenvironment.See, e.g., Henson v. City of Dundee, 682 F.2d 897, 901-02, 908-10 (llth Cir. 1982). 3 See AlbemarlePaper Co. v. Moody, 422 U.S. 405, 408, 421-22 (1975).



The University of ChicagoLaw Review


second employee-who resigned-would be entitled to backpay
only if her resignationwas found to be a "constructivedischarge."4 Courts have developed two different tests for determining
when an employee has been constructively discharged by a discriminatoryemployer. Under the majorityview, an employee who resigns after being subjected to unlawful discriminationis said to have been constructivelydischargedif a reasonableperson would have found the discriminatoryconditions to be intolerable.Under the minorityview, the plaintiff must show not only that conditions were intolerable, but also that the employer created those conditions with the specific intent of forcingher to resign.5In the example given above, a court taking the majorityview might find that the second employee's decision to resign was reasonable, and award her backpay.6A court following the minority view might agree that the resignationwas reasonable,but deny backpayon the grounds that, far from wanting the employee to quit, the supervisor wanted her to remainon the job and comply with his demands. Part I of this comment examines these two different tests in the context of cases decided under both Title VII and the Age Discrimination in Employment Act (ADEA),7isolating the...
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