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Trump v. Sessions: Are we witnessing a “constructive discharge” in real time?

By: Robin Shea

July 28, 2017

As anyone who’s been following the news is aware, President Trump has been publicly and repeatedly indicating his displeasure with Attorney General Jeff Sessions. We are a non-partisan blog, so I’m not going to get into who’s right and who’s wrong about the underlying dispute. But it does seem to me that the President is trying to force the Attorney General to quit.

Thus, the situation provides an excellent illustration of an employment law concept: the constructive discharge.

A constructive discharge (as opposed to an actual discharge) occurs when the employee quits — but only because the employer made his or her life a living hell. That’s my non-technical definition. The legal definition is that the employer “deliberately makes working conditions so intolerable that a reasonable person in the position of the employee would feel compelled to resign.”

Legally speaking, a constructive discharge is the same thing as an involuntary termination, which means the victim of a constructive discharge can usually collect unemployment and, if the employer’s motivation was illegal (for example, discriminatory or retaliatory), possibly recover wrongful termination damages.

But a constructive discharge is almost always worse for the employer than an actual termination. Because constructive discharge requires some level of cruelty (otherwise, the employee wouldn’t feel compelled to quit), employees who have been constructively discharged may be able to assert — in addition to their termination claims — claims for intentional infliction of emotional distress, and they may be able to get emotional distress damages and even punitive damages. These types of claims and damages are not always available in an actual termination case unless some wrongful conduct beyond the mere termination was involved.

For these reasons, I tell employers who are tempted to “force” a resignation to own the decision and do a clean termination.

So, back to President Trump and AG Sessions. The President has told The New York Times that he never would have hired Mr. Sessions if he’d known that Mr. Sessions would recuse himself from the Russia investigation. He’s publicly said since then that he is “very disappointed” in Mr. Sessions. He’s also tweeted about him, and not in a nice way. To wit:

How would you feel if you were AG Sessions? If it were me, I’d probably have quit when the NYTarticle came out, but it remains to be seen whether I am a “reasonable person.”  :-)

By: Robin Shea

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