My boss won’t talk to me. Is that constructive discharge?

I was asked to give feedback about my supervisor. I reported he was a poor communicator and needed to improve his time management skills. Two other employees gave the same feedback. I was told that this feedback was confidential. Now my manager doesn’t speak to me and only responds if I ask him a question. He may e-mail me if he has a question. I’m concerned about my annual review and possible retaliation. Could this be considered a constructive discharge situation?

Posted 09-19-2003

Ann Kiernan replies:

You were right about that evaluation – your boss is a poor communicator! At this point you don’t have a claim of constructive discharge, but if the boss retaliates against you, you might have one. Constructive discharge can occur when the employer deliberately makes the workplace so intolerable, that the only thing you can do it quit. But be warned that constructive discharge is not easy to prove.

For starts, most constructive discharge case involve illegal discrimination or harassment, and your case does not appear to involve that kind of treatment. If the boss treats everyone equally badly, that’s not discrimination.

In your case, the apparent reason for retaliation is not discrimination based on race, sex, age, etc., but rather based on what you said. Generally, you do not have protected freedom of speech in the workplace when talking about performance.

In an April, 2003 decision, the federal appeals court that covers your state (Pennsylvania) listed several situations that, combined with illegal discriminatory or harassing conduct, may indicate constructive discharge:

  1. A threat of discharge.
  2. Suggestions or encouragement of resignation.
  3. A demotion or reduction of pay or benefits.
  4. Involuntary transfer to a less desirable position.
  5. Alteration of job responsibilities.
  6. Unsatisfactory job evaluations.

Suders v. Easton, 325 F.3d 424 (3d Cir. 2003)

A crucial consideration is whether a reasonable person would have felt compelled to resign. This Pennsylvania court and other courts of appeals have noted that a reasonable employee will usually explore alternative avenues thoroughly before coming to the conclusion that resignation is the only option.

So, we urge you to contact your company’s human resources department, share your concerns, and ask for their assistance. We hope that your candor during the supervisor feedback process is rewarded with fair treatment.

Good luck.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:34+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.