Many folks will ask me when they are experiencing serious trouble at work, can they simply quit? Things have become so bad at work that just have to leave. Some victims of job harassment will experience headaches, nausea while driving to work, and worse symptoms. I sympathize, but have to tell them that quitting may undermine their case. The challenge with a bad situation at work is that, we can perhaps show discrimination or reprisal occurred. But, showing the work situation was so bad that the employee really had to quit is hugely difficult. In the employment law business, that is known as constructive discharge. The situation at work becomes so bad that the employee is, in effect, forced to quit. Many litigants file such claims. Rare is the constructive discharge that is  upheld by the courts of appeal.

But, in Carter v. California Grill, LLC, No. 19-CV-00588 (W.D. Tex. 5/11/2021), we  see the rare case in which the employee successfully claimed she was forced to quit. Plaintiff Carter worked at Foxy’s Cabaret as a waitress. She was African-American. Co-workers and management routinely used the n-word in referring to her, to other black workers and customers. During her few weeks at Foxy’s, the manager said, “what’s up [n-word]?” When Ms. Carter complained about the use of the n-word, the manager said he was only kidding. Plaintiff complained to General Manager Perkins about the manager’s use of the n-word. GM Perkins told the manager not to use that word. Yet, later that day and many times afterward, Ms. Carter was present when the manger used the n-word. Perkins was present, but said nothing.

Two white co-workers often used the n-word in Carter’s presence. Plaintiff Carter complained. But, nothing changed.

After Ms. Carter reported the racist comments to GM Perkins, her hours were reduced and she was assigned to less lucrative areas of the night club. The situation reached a point where Plaintiff Carter had “almost no work at all.” Customers told Ms. Carter that they were told that if a black waitress came to them, they should say they were being helped by someone else. GM Perkins started to behave differently toward Carter. He would not talk to her. Once, he bumped into her, knocking her cell phone out of her hand.  Ms. Carter came to work one day to find there were no tables for her. They had all been assigned to white waitresses. When she attempted to wait on someone she knew in the VIP section, she was prevented from entering by two security guards. But, two white waitresses were allowed to enter that same VIP section. The court decision does not explain when, but she filed a charge of discrimination with the EEOC at some point.

Ms. Carter told two managers that there was no point in her coming to work, if there were no tables for her to wait on. One manager replied that if she did not come work work, she would be abandoning her job. Carter then said she was resigning from her job. She amended her EEOC charge to show she quit because she had no work.

Plaintiff Carter filed suit. Foxy’s Cabaret filed a motion for summary judgment. The court noted that a constructive discharge occurs when the employer makes working conditions so intolerable that an employee feels compelled to resign. Foxy’s argued that constructive discharge cannot occur when an employee receives reduced work one night, or a series of nights. But, said the court, Carter’s hours were reduced starting when she complained to GM Perkins. The night club removed her from the bar and assigned her to tables. Carter said her hours were reduced and she was removed from the bar after she first complained about racism. The court rightly noted the discrepancy in testimony, making this not appropriate for summary judgment. The court denied the motion for summary judgment.