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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Sexual Harassment Victim Claims Constructive Discharge Where Employer Told Him To Deal With It Or Quit

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Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, protects employees from sexual and racial harassment in the workplace which is sufficiently severe or pervasive to create a hostile work environment.  When an employee endures hostile work environment harassment, the employee’s abusive work environment sometimes gives rise to a claim for constructive discharge.  An employee is constructively discharged when he or she is compelled to involuntarily resign in order to escape the hostile work environment.  Because the employee has to involuntarily resign due to continuous discriminatory harassment that the employer failed to correct, it is as if the employer discharged the employee.  A recent decision by the United States District Court for the Eastern District of Pennsylvania in Austin v. Bloomin’ Brands, Inc., 2017 WL 3726979 (E.D. Pa. Aug. 30, 2017) illustrates the type of circumstances giving rise to a constructive discharge claim for a victim of sexual harassment.

Employee Quits To Escape Hostile Work Environment

In that case, Mark Austin (Austin) brought claims pursuant to Title VII for sexual harassment, racial harassment, and retaliation against Bloomin’ Brands, Inc. and OS Restaurant Services, LLC, as owners of the Bonefish Grill restaurant in Newton Square, Pennsylvania (collectively Bonefish).  As an adverse employment action for his retaliation claim, Austin claimed that he was constructively discharged because of Bonefish’s failure to correct the hostile work environment harassment.    

Austin began working for Bonefish in April 2015.  Austin alleged that during his employment the kitchen staff would rub, pinch, or smack one another’s backsides as they moved past one another, message one another’s shoulder’s, put their arms around one another, and put their hands inside one another’s pants.  Austin claimed that there “wasn’t a day he worked that the touching did not happen.”  Austin further alleged that the kitchen staff subjected him to unwanted touching and regularly mimicked sexual acts.

In the summer of 2015, Austin complained to Bonefish’s managing partner about the kitchen’s staff’s behavior and alleged that he felt sexually harassed.  After Austin’s complaint, the kitchen staff’s behavior intensified and they began to target him.  Because the harassing behavior persisted in its frequency and severity, Austin made continued to complain to the managing partner.  On March 19, 2016, the general manager warned Austin to “get engaged or go home.”  Austin went home.  The next day, Austin complained to Bonefish’s joint venture partner.  The joint venture partner, who was the managing partner’s superior, investigated the complaint and notified Austin that many his co-workers admitted their behavior. 

However, the joint venture partner told Austin on March 25, 2016 that the company was done addressing his complaints and that Austin would no longer be allowed to leave his work station when he observed the offensive behavior.  The joint venture partner further informed Austin that the kitchen staff’s behavior would require discipline only if it was observed by a manager, otherwise Austin would have to “deal with the offensive behavior or quit.”  On March 29, 2016, Austin complained to an employee in the corporate human resources department about the kitchen staff’s offensive behavior and management’s deficient response.  The human resources employee allegedly told Austin to “deal with the work environment or quit.”  On March 29, 2016, Austin resigned his employment because of the intolerable work environment.

Bonefish filed a motion with the trial court seeking dismissal of Austin’s sexual harassment, racial harassment, and retaliation claims.  In doing so, Bonefish asked the trial court to find that Austin’s claims failed as a matter of law and Austin was prohibited from presenting his case to a jury.  Although the trial court dismissed Austin’s sexual harassment and racial harassment claims, the trial court refused to dismiss Austin’s retaliation claim and found that Austin’s retaliation claim must be decided by a jury. 

Employee’s Choices:  Adjust Or Quit

In denying dismissal of Austin’s retaliation claim, the trial court focused on Bonefish’s failure to take prompt and effective action to prevent recurrence of the harassment.  The trial court noted that the managing partner’s only response Austin’s sexual harassment complaints “was to speak informally with the kitchen staff, and the other managers took no action whatsoever.”  Despite his knowledge of the harassment, the managing partner told Austin “to get engaged or go home.”  While the joint venture partner told Austin he had had to “deal with the behavior or quit.”  Moreover, the trial court observed, an employee in the corporate human resources department “reiterated Austin’s only two choices:  adjust or quit.”  Thus, the trial court concluded, “a reasonable jury could find that Bonefish failed to take measures reasonably calculated to end the harassment.”     

Consult With Central Florida Wrongful Discharge Lawyers   

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience representing employees who have been the victim of a wrongful termination, including employees who have been forced to quit because of discrimination or harassment in the workplace.  If you have been the victim of a wrongful dismissal or have questions about whether you are legally entitled to quit in order to escape a hostile work environment, please contact our office for a free consultation with our Ocala wrongful termination attorneys.  Our employee rights law firm takes wrongful termination cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. 

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