If you have experienced unlawful discrimination or harassment in the workplace, there is often a strong temptation to walk into your boss’s office and tell him you quit, and then walk out of there and never go back. I regularly see people who have done just that. And, several months (or years) later, they make an appointment with a lawyer to discuss the possibility of filing a charge with the Equal Employment Opportunity Commission or suing their former employer.
When I speak with these people, I can’t help but wish that they had called me before they told their boss to take a long walk off a short cliff and walked triumphantly out of the office. Because had they done so, I would have given them the following advice:
Don’t quit your job. That’s what your employer wants. Quitting in the face of discrimination or unlawful harassment only costs you money and saves your employer money. There are several reasons that the “quit first, sue later” plan doesn’t work in practice:
(1) Timeliness. Most types of employment actions have an incredibly short timeframe within which you must file a charge with the EEOC or your State Department of Labor. For North Carolina State Employees, you have only 15 days within which to file a grievance regarding an adverse employment action if you want to pursue an action under the State Personnel Act. For most types of discrimination claims, an EEOC charge must be filed within 180 days of the discriminatory act or decision.
Once people are out of their toxic work environment, they have a tendency to get busy with other things and to lose their sense of urgency. In light of the very short limitations periods for employment actions in most instances, this loss of urgency can result in a complete loss of rights if you delay too long.
Additionally, for certain types of discrimination or harassment, you can assert that your employer has engaged in a “continuing violation” that will extend the period of time over which discriminatory acts can be considered in connection with a charge and sued upon. Staying with your employer after you have filed an initial charge of discrimination allows you to better take advantage of alleging and prosecuting a “continuing violation.”
(2) Retaliation. Many employers get away with blatant discrimination and harassment because employees would rather quit than face retaliation for complaining. Employees should take heart. Retaliation is also illegal and can give rise to a completely separate and independent claim. If you quit without reporting or complaining about the discrimination, you get nothing. If you complain of discrimination and your employer retaliates, you now have TWO employment claims instead of only one.
(3) Available Damages. This is perhaps the most important reason not to quit your job. When you quit your job, you may be cutting off your recoverable damages, depending on the specifics of your case. This is particularly true in harassment and unequal pay cases. The minute you voluntarily terminate your employment, you have placed an end date on the period for which you can claim damages.
Employers know and understand this. Accordingly, when they want to rid themselves of an employee for reasons they know are illegal, employers will often pressure the employee to quit. Indeed, your employer may tell you that your employment will be terminated if you don’t turn in your resignation by a certain date. They hope you will choose to resign so that they can later argue that your damages are limited to the time period before YOU terminated the employment relationship.
If your employer wrongfully terminates your employment, you are not only eligible for backpay and compensatory damages, but you are positioned for a significant front pay award. “Frontpay” refers to pay you would have received for several years into the future but for the employer’s wrongful actions. When your employer terminates you, it immediately runs the risk of a significant award of Frontpay, particularly if you are unable to find another job quickly.
So, if given a choice, sometimes it really is better to be fired.
(3) Unemployment Benefits. If your quit your job, you cannot apply for unemployment benefits. Employers will sometimes try to unlawfully rid themselves of an employee they don’t want anymore – particularly older workers, pregnant women, employees with a disability or those who have recently taken family or medical leave – by engineering a “layoff” or eliminating the employee’s position. If your employer engineers such a “layoff of one,” it is better to let them do it instead of quitting. Even if they don’t offer you any severance (as discussed further below), the layoff will leave you eligible to apply for and receive unemployment benefits.
(4) Severance. As a practical matter, quitting your job prevents you from obtaining or negotiating severance to cushion your search for your next opportunity. Many large corporations and institutions offer severance to employees they terminate almost as a matter of course. If you have worked at a large corporation for many years, you are better off waiting for the employer to terminate your employment and see if they offer severance.
Even if your employer is trying to make a record of performance deficiencies to justify a “for cause” termination, you are better off talking to an attorney about your case BEFORE you quit. An attorney can often negotiate a severance package and a neutral future employment reference for you as part of a comprehensive settlement of your discrimination claim. But this strategy works best if your attorney is engaged and actively negotiating with your employer before you leave or are terminated.
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The old song “Take This Job And Shove It” is a great fantasy, but not always a good strategy. To leave a toxic situation without leaving money on the table, talk to an attorney experienced in employment matters and get advice on how to preserve both your sanity and your money.
To make an appointment for a consultation and discuss your employment options, call us at (866) 226-6280 or sign up for our newsletter by filling out our contact form: