§ 1.2.8.2 THE CONSTRUCTIVE DISCHARGE ACT.

• Jurisdiction: Arizona

§ 1.2.8.2 The Constructive Discharge Act.¹²⁵ In 1997 the legislature passed a bill to clarify what constitutes working conditions that are so intolerable that the employee is justified in quitting and then suing the employer for being constructively discharged, although the employer did not actually fire the employee. The existing case law in Arizona was not strongly pro-employee on this issue. Employees were required to show that conduct was more egregious than mere discrimination or unlawful retaliation in order to constitute a "constructive discharge"; employees "must at least show some 'aggravating factors,' such as a 'continuous pattern of discriminatory treatment.'"¹²⁶ In Civil Rights Division v. Vernick Plumbing & Heating Co.,¹²⁷ the Arizona Court of Appeals defined a constructive discharge by explaining that a constructive discharge has occurred if "working conditions were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Likewise, the Ninth Circuit Court of Appeals, noting its definition was similar to the Vernick Plumbing & Heating definition, stated that a constructive discharge occurs when, "looking at the totality of the circumstances, 'a reasonable person in [the employee's] position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.'"¹²⁸ This is an objective standard, not one defined by the subjective perception of the employee.

Presented with claims by the employer community that an employee could quit and then come back and sue the employer by falsely claiming that she left because of intolerable and discriminatory working conditions (again, the frivolous-lawsuit bugaboo), the legislature was asked to pass legislation requiring 30 days' notice in writing to the employer before the employee walked off the job site in order to allow the employer to have notice of the problem and time to investigate and possibly take corrective action. If the employee did not give such notice, no suit could be brought. Sensitive to the possibility that someone might legitimately object to continuing to work in an intolerable situation, such as where the immediate supervisor was the one guilty of sexual harassment or assault, the bill allowed employees to take 30 days off without pay, so they could avoid the unpleasant environment during the employer's investigation. The bill immediately passed the State Senate.

The House was not as receptive...