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Cripe9/28/2005
en he alleged that he was terminated for refusing to commit an illegal act for which he could have been personally liable. Id.
McClanahan stands for the proposition that one need not be required to break the law to retain one's employment. The law should not permit a situation where an employer requires and an employee feels he must commit illegal acts. The majority's opinion turns a blind eye to employers who require an employee to commit illegal acts, and fails to give employees who have been forced to commit illegal acts in order to retain their employment any legal recourse. Thus, I believe the majority's opinion is contrary to the policies announced by our supreme court in McClanahan.
Furthermore, in declining to adopt the constructive discharge doctrine, the majority's opinion ignores the fact that some employee resignations are involuntary, as I believe was the case in McClanahan. In doing so, the majority allows employers who wrongfully force an employee to resign to escape any sort of liability for their actions. Additionally, I also believe that a constructive discharge has the potential to be far more egregious than an express discharge. With an express discharge, the employee is wronged in that he is fired without good cause. In a constructive discharge, although the employee is not fired, his employer may subject him to multiple abuses in an effort to make working conditions so intolerable that the employee is left with no choice but to resign. For the above reasons, I believe Indiana should adopt the doctrine of constructive discharge as a defense that an at-will-employee can raise in the context of a common law retaliatory discharge claim. In one sense, I believe McClanahan has already done so.
"The concept of constructive discharge first arose in federal statutory claims brought under the National Labor Relations Act." Strozinsky v. School Dist. of Brown Deer, 614 N.W.2d 443, 462 (Wis. 2000). The United States Supreme Court had the opportunity to address such a claim in Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984). In that case, the Court indicated that an employer discriminates "not only when . . . it directly dismisses an employee, but also when it purposefully creates working conditions so intolerable that the employee has no option but to resign--a so-called 'constructive discharge.'" Id. at 894. Federal courts have since allowed a constructive discharge defense in discrimination actions brought under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990. Strozinsky, 614 N.W.2d at 462.
Many states now recognize constructive discharge as a defense that an at-will-employee can raise in the context of a common law retaliatory discharge or wrongful discharge claim, and, consequently, these states permit an employee who has not been fired to raise a retaliatory discharge claim. See id. at 466; Balmer v. Hawkeye Steel, 604 N.W.2d 639, 642 (Iowa 2000) (citing Reihmann v. Foerstner, 375 N.W.2d 677, 683-84 (Iowa 1985)); Collier v. Insignia Fin. Group, 981 P.2d 321, 326 (Okla. 1999); Bell v. Dynamite Foods, 969 S.W.2d 847, 851 (Mo. Ct. App. 1998); Nguyen v. Technical & Scientific Application, Inc., 981 S.W.2d 900, 902 (Tex. App. 1998); GTE Products Corp v. Stewart, 653 N.E.2d 161, 168-70 (Mass. 1995); Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1029-30 (Cal. 1994); Vagts v. Perry Drug Stores, Inc., 516 N.W.2d 102, 105 (Mich. Ct. App. 1994); Dalby v. Sisters of Providence in Oregon, 865 P.2d 391, 394-95 (Or. Ct. App. 1993); Slack v. Kanawha County Hous. and Redevelopment Auth., 423 S.E.2d 547, 558 (W. Va. 1992); Seery v. Yale-New Haven
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