Many people question whether or not they are permitted to resign from their employment and then collect unemployment compensation benefits, under the theory of “constructive termination”, when a co-worker is harassing them. “Constructive termination” in Colorado is shown by evidence establishing deliberate action on the part of an employer which makes or allows an employee’s working conditions to become so difficult or intolerable that the employee has no other choice but to resign. Such determination depends upon whether a reasonable person under the same or similar circumstances would view the working conditions as intolerable. See, Wilson v. Board of County Commissioners.
Colorado law provides that when an employee quits “because of personal harassment by the employer not related to the performance of the job,” the employee must be awarded benefits. See, Colo. Rev. Stat. § 8-73-108(4)(o). The Colorado Court of Appeals, in August 2013, in the case of Yotes, Inc. v. Indus. Claim Appeals Office of the State, discussed this issue arising under the following facts.
In this case the claimant felt that a co-worker with whom he had previously had, and ended, a sexual relationship, was sexually harassing him. Due to what he felt was persistent communication by his ex-lover, the claimant wrote to his supervisor asking him to stop the harassment in the workplace. His supervisor scheduled a meeting with claimant as soon as he was able to, and informed him that, since the supervisor would be traveling out of town for a week, he would meet with the co-worker upon his return. During the interim, he authorized the claimant to be absent from work, on paid leave, until he could meet with the co-worker upon his return. Despite the fact that while on paid leave, claimant had no contact at the workplace from the co-worker, claimant felt that the employer was not taking his matter seriously due to the delay, and thereupon quit his employment and sought unemployment benefits.
The Colorado Court of Appeals reversed the decision of the Industrial Claims Appeals Office, which had granted benefits to the employee. The basis of their decision was that the claimant only proved harassment by a co-worker, but did not show any harassment by the employer, nor any action by which it could be reasonably considered that the employer was condoning such action.
From the decision of the Court of Appeals it seems clear that in order to collect unemployment benefits in Colorado for harassment by an employer, there must be sufficient facts to show that the employer took some action against the employee in order to substantiate such a claim.
This was not a case involving allegations of sexual harassment or discrimination in violation of either Title VII of the Civil Rights Act or of the Colorado Anti-Discrimination Act, but was only a claim involving unemployment benefits. Harassment under those statutes are subject to different legal principles.
Nathan Davidovich is available for consultation on employment matters by calling him at 303-825-5529.
Copyright (c) November 2015