Is constructive discharge considered an adverse employment action in the 9th Circuit? Here’s my point of view.
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Constructive Discharge (or Termination)
In Washington State, resignation from employment is presumed to be voluntary. Molsness v. City of Walla Walla, 84 Wn. App. 393, 398, 928 P.2d 1108 (1996) (citing Sneed v. Barna, 80 Wn. App. 843, 912 P.2d 1035 (1996)). The legal theory of constructive discharge allows plaintiffs to rebut that presumption under both state (i.e., Washington Law Against Discrimination) and federal law (i.e., Title VII and Section 1981).
Constructive Discharge Is an Adverse Employment Action (9th Circuit)
The Ninth Circuit broadly defines an “adverse employment action” as “any action ‘reasonably likely to deter employees from engaging in protected activity.’” Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir. 2004) (quoting Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000); see also Poland v. Chertoff, 494 F.3d 1174, 1180 (9th Cir. 2007)). “A constructive discharge–if proven–constitutes an adverse employment action.” Jordan v. Clark, 847 F.2d 1368, 1377 n.10 (9th Cir. 1988) (hyperlink added).
Accordingly, plaintiffs typically use constructive discharge to support viable legal theories of employment discrimination that require adverse employment actions to establish a prima facie case.
Read our related articles
» Effective Date for Constructive Discharge
» What Is Constructive Termination in WA State?
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