A recent decision out of the Northern District of California provides a good case study on how requiring an employee to work beyond their pay grade without providing the associated compensation or title may be grounds for a constructive termination claim. The case is Gibson v. AL Jazeera Int’l (USA) LLC.
In Al Jazeera, Emily Gibson, the Plaintiff, alleged that her former employer, the news outlet Al Jazeera International (“Al Jazeera”), discriminated against her because she is a woman. She contends that Defendant paid her less than male employees, tolerated harassment by male employees, placed her in an “acting” position to avoid providing fair pay and credit, and then retaliated by retracting a promotion after she raised these issues internally. This ultimately resulted in Ms. Gibson resigning and bringing an employment discrimination suit. Below, we will briefly review this case and highlight an important takeaway for employers.
Background
In the lawsuit against her former employer, Ms. Gibson alleged that she started working as a contract video producer for the Defendant in 2015. She immediately and repeatedly experienced gender discrimination, including unequal pay, until she resigned in 2020. The Defendant initially paid her $23 an hour, while it paid a male colleague – who started the same day as her with nearly identical experience – $35 an hour. And, when the Defendant promoted her in 2016 to a full-time role as a producer, it paid her less than her male counterparts. The Plaintiff and other female producers were routinely responsible for a disproportionate workload compared to male producers. For example, Plaintiff frequently worked as an “acting” senior producer and had senior producer responsibilities without correspondingly higher pay.
Despite the alleged discrimination, Plaintiff was among the highest-performing producers at the company. She won numerous industry awards, as did projects she worked on. For her work in 2019, management rated her as “Distinguished,” the highest performance rating at the company. Recognizing these accomplishments, an executive producer told the Plaintiff in October 2019 that the executive wanted to promote her to senior producer, which came with increased compensation and managerial responsibility. Soon after, she began performing duties as a senior producer on two separate shows. She was added to an internal-messaging group reserved for managers, and the company arranged for her to receive management training in Washington, D.C., in January 2020
Plaintiff completed the management training in January 2020. While at the training, Ms. Gibson heard “many complaints” from women about unequal pay, and she shared her experiences of gender discrimination with other employees. A few weeks after the training ended, an executive producer informed her that she would not be promoted to senior producer because the company “no longer believed” that she was “qualified for the promotion.” Defendant did not further explain the decision. At this point, Plaintiff had worked at Al Jazeera for over four years, longer than any other full-time producer at the company.
Even though Al Jazeera revoked her promotion, Ms. Gibson continued to be assigned work that a senior producer would do, which she considered an unsustainable “double workload”, without increased compensation or a senior producer credit for her work. Plaintiff had the “sense” that she would never be promoted based on her gender and in retaliation for her comments about gender discrimination, including when she was told that a senior executive did not want her to speak about her experiences with discrimination. A few months after she learned she would not be promoted, Plaintiff resigned. The Plaintiff then sued, alleging among other causes of action that her treatment constituted constructive discharge.
The Court’s Decision
Plaintiff’s initial complaint contained eleven different claims. In response, Defendant moved to dismiss many of the claims, but for brevity’s sake, we will only look to Plaintiff’s Constructive-Discharge Claim here.
During its review, the court noted that to maintain a constructive-discharge claim, a Plaintiff must plead enough facts to plausibly show “that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.”
However, this standard creates a high bar. For example, “the mere failure to promote the Plaintiff, even if unlawfully discriminatory, will not support a finding of constructive discharge,” and “a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge.” Instead, “the essence of the test” for intolerability “is whether, under all the circumstances, the working conditions are so unusually adverse that a reasonable employee in [the] Plaintiff’s position would have felt compelled to resign.”
Here, Plaintiff asserts that the retaliatory revocation of her promotion and the denial of credit as senior producer effectively compelled her to resign. Accepting Plaintiff’s allegations as true, the court ruled that Plaintiff’s complaint alleged sufficient facts to proceed. Specifically, the court noted, Plaintiff alleged she was asked to perform a more senior position’s work “without credit, proper pay, or possibility of advancement”, all while she reasonably believed that she would never be promoted. Moreover, Plaintiff alleged that management expressly told her to keep silent about her experiences. As such, the court held, “under all the circumstances,” the Plaintiff reasonably understood her options were to either resign or be taken advantage of.”
As such, with the court’s denial of Al Jazeera’s motion to dismiss, the Plaintiff’s constructive termination and other discrimination-related claims will continue for the time being.
Key Takeaways
As an employer, it is important to understand that personnel actions like work assignment or promotion decisions typically cannot form the basis for a constructive wrongful termination claim, which requires that the working conditions themselves are “so intolerable or aggravated” that a reasonable employee “would be compelled to resign.” However, coupled with intolerable or aggravated working conditions, like those discussed above, a failing claim may find solid ground in a court of law.
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About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://