In Title VII sexual harassment cases based on hostile work environments, application of the constructive discharge doctrine imposes unfair burdens on claimants. A finding of constructive discharge requires a greater severity or pervasiveness of harassment than that required for finding a hostile work environment. This forces many hostile environment victims to remain in abusive and intolerable conditions because they cannot afford to resign. Unless found constructively discharged by their employers, victims who quit their jobs cannot recover back pay for the period between resignation and judgment. The incorrect and inconsistent application of the constructive discharge doctrine in sexually hostile environment cases causes this result. A per se rule that necessitates finding a constructive discharge when a sexually hostile work environment is found provides a uniform and fair solution to the problem.
Sarah H. Perry,
Notes and Comments,
Enough Is Enough: Pre Se Constructive Discharge for Victims of Sexually Hostile Work Environments under Title VII,
70 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol70/iss2/7