As an employment law firm that primarily represents employees our firm does not go a week without a potential client contacting us after they have quit because they contended their work environment was so terrible that they had no choice but to quit. What those individuals do not realize is that when you wait until after quitting to contact an employment lawyer you are essentially telling that lawyer that you could have had a case, but you probably threw it away. This is for several reasons.
The first reason is that the employee did not give the employer the opportunity to correct the harassment. The United States Supreme Court has created a defense for employers for claims of harassment that do not involve some type of tangible economic effect on the employee. This defense is called the Ellegher/Faragher affirmative defense. Essentially, it says an employer can only be held liable for a hostile work environment if (1) the employee complains of a hostile work environment to the employer, (2) the employer does not take reasonable steps to stop the harassment, and (3) the hostile work environment continues after the complaint. Many times we see employees that have been subjected to severe harassment quit instead of complaining. What those employees do not realize is that by quitting they not only throw away their claim, but they allow the harasser to continue harassing other employees.
The second reason is that the courts have put such a high burden on what it takes to be a force resignation. The Fifth Circuit, which handles appeals of all federal cases in Mississippi, Louisiana, and Texas; has set very high standards for claims of force resignations when an employer has not demanded an employee resign in lieu of termination. When a potential client asks our firm whether they have sufficient reason to quit we traditionally point them to the case of Donaldson v. CDB, Inc. In Donaldson, it was alleged the harasser, which was a management employee, had (1) made jokes about Ms. Donaldson's physical features, (2) repeatedly asked a female employee if she had remembered to turn the television off because he forgot to when he left her bed last night, (3) asked Ms. Donaldson if it was her "time of the month because something smelled stank," (4) told Ms. Donaldson that he had noted flies in the lobby and could not tell where they were coming from until a female employee had opened her legs and the flies began swarming to her, (5) made hand gestures to female employees simulating oral sex, (6) making comments to Donaldson that it looked like a female employee's water had broken, (7) told an employee that he would only hire overweight women because "they work slows but at least they show up for work, (8) when an attractive female customer would enter the store the harasser would yell "Code Red" as a signal for all the male employees to come look at the attractive female customer, (9) telling employees that he "only had two minutes for a woman and she better hurry up and get hers because he was going to get his," (10) any time a Georgia Pacific log truck would drive by he would refer to it as his penis, (11) had mentioned that Donaldson's boyfriend must have put her feet over her head to "get it in" when he noticed her limping from an injury, (12) had mentioned that Donaldson should have sex with a oil change mechanic so he could get a free oil change (13) after filing a charge of sexual harassment with the EEOC the harasser called a meeting for only female employee where he berated Donaldson and called her the Devil to intimidate Donaldson and any other female employee that might support her claim, and (14) had asserted Donaldson had cash shortages when she was not even working a register, which Donaldson considered a threat of criminal charges as the employer had pursued criminal charges for cash shortages in the past.
The Fifth Circuit held that all of these events that Donaldson had alleged could constitute a hostile work environment, but found that a hostile work environment like this is not sufficient to cause an individual to resign. The reason we show a potential client the Donaldson case is we explain that they must have suffered much more severe harassment than Ms. Donaldson had alleged to have a reasonable chance to be successful on a claim for forced resignation. Notably, our firm has not found any Fifth Circuit cases where it found the plaintiff had alleged sufficient evidence for a forced resignation based solely on harassment that did not have a tangible economic effect.
The third reason is by not quitting it is likely your case will have more settlement value. Nationwide, only around 2% of employment cases go to trial. If they do not get dismissed on technicalities, the rest settle prior to trial. An employer that is trying to get an employee to quit will traditionally be willing to pay significantly more for a settlement that includes resignation compared to paying to settle a case with the employee staying to work or a settlement where an employee has quit.
Finally, while we advise against resigning in most cases, we do realize that there are situations that there is no choice but to resign. For example, if an employer informs an employee that they will be terminated if they do not immediately resign, then it would be reasonable to resign. However, we would advise recording such meetings or requesting the employer to place it in writing as many times employers with improper motives will lie and claim the employee resigned with no pressure from the employer.