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What is the Constructive Discharge Standard Under the New York City Human Rights Law?

Resignation.Dollar.Photo.Club.2.15.16.jpgOur Award-Winning New York Employment Lawyer has been asked to discuss the following question — what is the standard for constructive discharge under the city law. Constructive discharge claims can be difficult to prove. In general, a constructive discharge claim requires two separate events (i) employer engages in prohibited conduct; and (ii) and the employee resigns from his or her job. Under this theory, an employer cannot simply evade liability of the underlying discriminatory or harassing conduct simply because the employee resigned. This blog post discusses the standard under NYC Human Rights Law, which carries a lower burden for employees than federal law.

A recent decision, In the Matter of Comm’n on Human Rights ex rel. Cardenas v. Automatic Meter Reading Corp. et al., discusses the appropriate standard and burden of proof. The portion of the decision follows (please note that Cardenas is the complainant-employee and Fund is the sole owner of the respondent):

Under the [New York City Human Rights Law – “NYCHRL”], “a work environment need not be offensive, pervasive, and continuous in order to qualify as hostile.” Zick v. Waterfront Comm ‘n of N. Y. Harbor, No. 11 Civ. 5093, 2012 WL 4785703, at *8 (S.D.N.Y. Oct. 4, 2012) (internal citations omitted); see also Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 674 (S.D.N.Y. 2012). In order to state a claim under the NYCHRL, Cardenas must allege that she “has been treated less well than other employees because of’ her membership in a protected class. Id. (citing Davis-Bell, 851 F. Supp. 2d at 671 (emphasis added) (internal citations and quotation marks omitted)). To prove a constructive discharge, the Bureau must establish that Cardenas “was subjected to an environment hostile enough to force her to quit because of some factor prohibited by the statute.” Id. (emphasis in original). This standard stands in contrast to the oft-cited, outdated standard articulated in Albania v. City of New York, in which the Appellate Division held that constructive discharge occurs when “working environments had been made objectively so intolerable that a reasonable person in [complainants’] respective positions would have felt compelled to leave.” 67 A.D.3d 407, 408 (NY. App. Div. 2009), afi’d, 947 N.E.2d 135 (2011) (emphasis added).

The undisputed facts support the conclusion that in the three years preceding Cardenas’s termination, Fund engaged in a continuous campaign of sexually hostile, offensive, and discriminatory harassment up to and including the “umbrella incident” — conduct that was “hostile enough to force [Cardenas] to quit.” The Commission credits the record evidence and concludes that the “umbrella incident” was the final breaking point that caused her to leave her job. (Tr. 26-32, 44, 90-91, 396-98; Bureau Ex. 4.) Accordingly, the Commission agrees with Judge Zorgniotti that Respondents constructively discharged Cardenas.

In general, under federal law, the standard for constructive discharge is met when an employer discriminates against an employee and intentionally makes the working conditions so intolerable that a reasonable person in the employee’s position would resign. As you can see the hurdle is heightened under federal law. In fact, the standard for proving an underlying discrimination or harassment claim is lower under the city law as well.

Know.Your.Rights.Dollar.Photo.Club.3.9.15.jpgThere are practical issues for an employee to consider if he or she is contemplating resigning. What impact will it have on the underlying complaint of discrimination or harassment? Has that complaint been documented? What are the specific instances supporting a constructive discharge claim? Are the factual circumstances intertwined with a retaliation claim as well? Ideally, an employee should seek counsel from an experienced employment law attorney to learn his or her rights and options before resigning.


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