Wrongful Termination Lawsuits: Can an Employee Sue?

Case Study 1: Discrimination and Forced Resignation

1. A manager at an airline raised concerns about the airline’s pay practices. She also complained that the performance appraisal process discriminated against female employees. After a number of run-ins with her supervisor, the supervi- sor determined that the woman “could not be trusted in a leadership position.” At a subsequent meeting between the employee, the supervisor, and an HR representative, the employee was told that she had the option of resigning or ac- cepting a nonmanagement, part-time customer service position in a different state. The woman said that she could not leave Colorado because of her three children. She eventually submitted a letter of resignation. Can the woman still sue for wrongful termination? Why or why not?

2. A long-time employee received a negative per- formance appraisal after some other employees and a customer had complained about him. The employee was presented with the choice of retir- ing with a severance package or being evaluated under a thirty-day performance improvement plan. The plan would include an assessment of his performance, leadership, support for peers and managers, teamwork, and customer satis- faction. He was also told that if his supervisor received even just one complaint about him during this thirty-day period, he would be ter- minated without severance pay. The employee was given thirty days to consider the offer. After mulling over the choice for twenty-five days, he took the severance package. Subsequently, the employee sued his former employer for wrongful termination. Was the employee constructively discharged? Why or why not?

3. A 67-year-old woman worked as a vice president of a company. She had a two-year employment contract that permitted her to resign at any time by doing so in writing and with thirty days ad- vance notice. Under her contract, the companycould terminate her employment either for cause (without severance pay) or without cause (but with prior notice and severance pay). She had a strained relationship with the senior vice president to whom she reported. The senior VP brought in a new sales director (a male in his forties), removing that function from the wom- an’s job. She was later told that the senior VP wanted to meet with her at a trade show that the two were attending to discuss his concerns about her performance. When the woman showed up for the meeting, the senior VP said that he didn’t have any time for her then, but might be able to find ten minutes or so later in the week. Irked by the dismissive treatment, the woman asked “Do you want me to resign?” The senior
VP said “Oh, no, no, we want you here for a long time to come.” But as the woman started to walk away, he said “I think you should think about that.” Two coworkers with whom the woman spoke with afterward (one of them was the new sales director) said that she told them she had “resigned” and they shared this information with the senior VP. However, the woman did not submit a letter of resignation and the senior VP did not inquire further with her about her status.

Diversity and Affirmative Action

 Affirmative action overlaps with the broader and increasingly pervasive notion of valuing diversity in the workplace. But a shift in semantics and underlying rationales does not ob- viate the legal issues that surround affirmative action programs. Indeed, these issues might be further complicated by murkiness in diversity programs about the role that protected class considerations play in the making of employment decisions and how far employers can go in showing their commitment to diversity. Cases in which diversity efforts not specifically grounded in affirmative action plans lead to reverse discrimination claims are likely to become increasingly common. In one such case,41 a jury verdict holding a group of defendants liable for discriminating against white males in making promotions to the rank of police captain was upheld. The court took note of the fact that the commissioners had evaluated the police chief on his ability to foster diversity and that this was the only aspect of the chief ’s performance with which the commissioners consistently expressed satisfaction. A consent decree governing affirmative action in initial hiring but not promotions was in place at the beginning.