The “Yes, Daddy” Case[1]
Tatum arrived in my office with her boyfriend. He was supportive but clearly agitated. Meanwhile, Tatum looked like she was attending a funeral. She’d recently stormed out of her job—quitting without notice.
She left because, while at work, boss had brushed his hand along her shoulder. Then he reached into the collar of her shirt and pinched her bra strap. She said “Stop,” and pushed his away.
It was the final straw.
Tatum’s boss had been sending her creepy messages for months. She complained to HR, but she did so in-person, and she did not have proof of her complaint. Sadly, they didn’t do anything to help. The texts were the only proof she had. Her hands shook as she handed me her phone.
I cringed when I read the messages.
I want to bend you over and slap your [X] . . .
. . . make you say, “Yes Daddy!” . . .
. . . While I [X] all over your [X] . . .
. . . then you’ll say, “Thank you, Daddy.”[2]
It went on like that for a while. Dozens of filthy green bubbles that would make Hugh Hefner blush. I scrolled and took some notes—all these texts were about to become critical evidence in the lawsuit.
Tatum’s boyfriend fumed while I reviewed the messages. “I could kill him.”
“He’s a pig,” Tatum replied. “I told him to stop saying these things. He didn’t listen. He never listened.”
“Why’d you wait so long to tell me?” he snapped.
“I was scared, okay? You don’t get it. He could ruin my career!” Tatum sobbed. “What am I talking about? My career is already ruined.”
The boyfriend buried his face in his palms. “I’m sorry, baby.”
“Easy everyone,” I said, placing the phone down. “What happened was not Tatum’s fault, and it’s happened to other people like her. Tatum, your career is far from over. Let’s take a break. When we get back, we are going to go through what happened one step at a time.”
Tatum sniffled. “Does it matter that I quit? I heard you can’t sue if you quit.”
“That’s the general rule, yes.” I explained, standing up from my desk. “But there are exceptions. After the break, I will explain what constructive wrongful termination is. I think this case falls into that category.”
Constructive Wrongful Termination (CWT)
You can sue for wrongful termination even if you quit. It’s a rarely-used cause of action called constructive wrongful termination or “CWT.” This law is designed to capture the gray area between being fired and being forced to quit. CWT is when you are basically forced to quit through no fault of your own. To win a CWT case, you have to prove:
(1) There were intolerable work conditions,
(2) That any reasonable person would feel they had no option but to quit, and
(3) You tried to preserve the employment relationship, and
(4) You quit despite a sincere desire to remain employed.
It’s a high bar to meet, and the details will vary by state, but generally speaking if you can prove all 4 of these elements, then you can prove CWT even when you quit.
Examples of CWT include (but are not limited to):
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Quitting because of gross sexual harassment
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Quitting because you were ordered to break the law
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Quitting because you were forced to work in seriously unsafe conditions
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Quitting following an extensive harassment and discrimination campaign against you.
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Quitting because your employer stopped paying you.
What Does it Mean to be FORCED to Quit?
Quitting just because you are pissed off, fed up, or unhappy will not be enough to prove CWT. Rather, you need to show that any reasonable person would also feel that way. You have to show that a hypothetical, average person would also feel they had no choice but to quit. The hypothetical “reasonable person” does not have any of your unique triggers, traumas, or sensitivities.
That means you have to prove a very high bar—showing a pattern of abuse that shocks the conscience.
Your boss being an asshole is not enough. That could be a form of harassment, and you could be entitled to damages, but it would be enough to prove CWT. In fact, a few creepy messages by themselves might not be enough either (assuming they are isolated or infrequent incidents.)
What if I’m Given a Choice to Resign or Be Fired?
This choice, by itself, does not mean you have a CWT case. It’s common for employers to offer you the opportunity to resign to avoid being fired. I will get into this scenario in more detail in a later post. For now, it is my opinion that being fired is usually better (legally speaking) than resigning. But of course, there are exceptions.
That said, being told to resign is not the same as being forced out due to “intolerable conditions,” which is the operative detail in this scenario.
Sexual Harassment Often Correlates with CWT
Sexual harassment is typically a strong indicator that you were constructively fired, even if you resigned.
Tatum quit her job because her creepy boss made her feel unsafe at work.
The inappropriate touching and messages were sexual harassment. Specifically, they were hostile work environment harassment because they were obscen, they occurred frequently, and they were clearly motivated by Tatum’s sex.
But the touching and the messages were also a form of quid pro quo harassment. That is when enduring the sexual harassment is a condition of remaining employed. Clearly, Tatum’s boss felt he could dangle her career over her head to make her submit to his gross sexual advances.
Both of these are illegal on their own, but combined, they tend to show the workplace was intolerable.
Was it CWT?
Here’s the million-dollar question. Tatum quit, and it was obviously because of the harassment, but was it enough to prove CWT?
Let’s run through the elements again:
(1) There were intolerable work conditions;
I think we all agree that getting creepy texts is gross. And that extra step of fondling Tatum’s bra strap was a serious escalation. I think either action counts as intolerable but taken together it’s a strong candidate for CWT.
(2) Any reasonable person would feel they had no option but to quit;
No reasonable person would want to continue working in a place where the boss wants to be called “daddy” and touch your underwear. Bosses cannot use their power to force you to submit to abuse like this.
(3) You tried to preserve the employment relationship;
Tatum reported her boss to HR. That shows she tried to take action to preserve the employment relationship. This is true even though HR did not take action. Tatum made a mistake by not documenting the complaint, which you should always do. But we still asserted that the complaint was made. The text messages showed a motive to make a complaint, and her testimony would help fill in the gaps even if HR denied a complaint ever happened.
(4) You quit despite a sincere desire to remain employed.
Tatum reported her boss, she tried to tell him no, and she tried to make this job work. But the moment he put his hands on her, it was too much.
Despite her best efforts, she was forced out, and this was a strong case of CWT.
How to Resign in a Way that Preserves a CWT Claim
This email template will not automatically make your case a CWT. Rather, it helps prevent you from saying something that ruins your case. This is a template to help you find the right words. It’s not made for any specific situation, but it can help:
Dear [Name],
I am writing because, despite my sincere desire to keep my job, I feel I have no choice but to resign.
I have been subjected to [sexual harassment, unsafe conditions, persistent wage theft, discrimination, etc.] for [state the amount of time.]
In that time, I attempted to seek help on several occasions. Despite these efforts, the intolerable work conditions have persisted.
I feel I have no choice but to resign.
My last day will be [Date].
Employee
CWT Is a High Bar to Prove
It’s difficult to win a CWT claim but its possible with proof.
Sexual harassment is a common trigger for CWT. But as I mentioned before, unsafe conditions, illegal activities, and gross wage theft can all count as well.
If you think you are being forced out of a job, it’s wise to consult a workers’ rights lawyer in your state. And always make a paper trail!
Conclusion
You can still pursue a wrongful termination claim if you quit. This is reserved for situations where you are being forced out under exceptionally bad circumstances. Proving Constructive Wrongful Termination (CWT) requires evidence that you tried to preserve the employment relationship, and of course you’ll need proof of the intolerable work conditions as well.
If you succeed in proving CWT, you may be entitled to money damages as if you were fired, even if you were not actually “fired.”
[1] Names and details have been modified to preserve client confidentiality, but this is from a real case.
[2] I hope I’ve struck the balance between showing you what the gist of these messages were without going overboard on the details. Still, I feel most would be shocked how graphic some bosses get with their employees.
