A “relentless and ruthless” campaign of 1,000 age-based insults might force an older employee to resign

noun-insult-4516682This case is close,” reasoned a federal appellate court.

Unlike the district court before it, which granted summary judgment in favor of the employer-defendant on the Age Discrimination in Employment Act claims of the employee-plaintiff, the Seventh Circuit Court of Appeals concluded that a jury could return an age discrimination verdict in favor of a plaintiff who felt forced to resign after his coworkers hurled upwards of 1,000 age-based insults at him and repeatedly defaced his workstation without management taking effective steps to end the misconduct.

What made this a close call?

An employee claiming age discrimination must show that his age was the “but for” cause of a challenged employment action (here, his employment separation).

But, the defendant did not discipline or fire the plaintiff. Instead, he proceeded under a constructive discharge theory.

Successful constructive discharge cases are rare. That’s because the workplace must be so intolerable that a reasonable person would feel compelled to quit. That’s a higher burden of proof that establishing a hostile work environment. Indeed, the plaintiff must establish that he suffered egregious abuse because of his age and that any attempt to get help from his employer would have been futile.

In this case, two out of three judges on the appellate court panel concluded that hecka-pervasive verbal taunts and humiliating workplace pranks were too much for him to handle. Plus, the record established that the plaintiff complained to five different manager-level employees of the defendant, the company subsequently received notice of an EEOC charge, and the bad behavior continued. Therefore, a jury could conclude that there wasn’t anything more the plaintiff could do to help himself — other than resorting to the ultimate self-help: resigning.

The plaintiff could pursue an ADEA claim based on these egregious facts on a constructive discharge theory.

The odds are that your business won’t face one of these constructive discharge discrimination claims. And if it does, the claim won’t be successful. However, to juice the odds in your favor:

  • Encourage your managers to take all claims of harassment seriously.
  • Investigate claims of harassment and communicate the results to the complainant
  • When claims are validated, take real action to prevent recurring harassment. For example, don’t just tell bad actors to stop — threaten real adverse consequences.
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