Constructive Discharge Under Title VII and the ADEA Finnegan, Sheila. The University of Chicago Law Review. Chicago: Spring 1986. Vol. 53, Iss. 2; pg. 561, 20 pgs

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COMMENTS

Constructive Discharge Under Title VII and the ADEA
Consider two employees who are victims of sexual harrassment. The first employee is fired after she refuses to accede to the repeated sexual demands of her supervisor. The second employee is also propositioned,but considers the workingenvironmentso intolerable that she resigns before any adverse action is taken against her. Each woman then sues her employer under Title VII of the Civil Rights Act of 1964.1 Both employers may have violated Title VII.2 Even so, because of the way in which their employment was terminated the two employees may be entitled to different remedies. The first employee-who was fired-would presumptively be entitled to backpay for the wages lost after the date of firing.3In contrast, the
1 Pub. L. No. 88-352, ?? 701-716,78 Stat. 253 (1964) (codifiedas amendedat 42 U.S.C. ?? 2000e to 2000e-17 (1982)) [hereinaftercited as Title VII]. Section 703(a) of Title VII provides: (a) It shall be an unlawfulemploymentpractice for an employer(1) to fail or refuse to hire or to dischargeany individual,or otherwiseto discriminate against any individual with respect to his compensation,terms, conditions, or privilegesof employment,because of such individual'srace, color, religion,sex, or national origin;or (2) to limit, segregate,or classify his employees or applicants for employmentin any way which would deprive or tend to deprive any individualof employmentopportunities or otherwiseadverselyaffect his status as an employee, because of such individual's race, color, religion,sex, or national origin. 42 U.S.C. ? 2000e-2(a) (1982). In addition, section 704(a) makes it an unlawfulemploymentpractice for an employer to discriminateagainst an employeebecause the employeehas "opposedany practicemade an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participatedin any mannerin an investigation,proceeding,or hearing under this subchapter."42 U.S.C. ? 2000e-3(a) (1982). 2 The first employermight be liable for what is knownas "quid pro quo" harassment, while the second could be liable for the creation of an offensiveworkingenvironment.See, e.g., Henson v. City of Dundee, 682 F.2d 897, 901-02, 908-10 (llth Cir. 1982). 3 See AlbemarlePaper Co. v. Moody, 422 U.S. 405, 408, 421-22 (1975).

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second employee-who resigned-would be entitled to backpay only if her resignationwas found to be a "constructivedischarge."4 Courts have developed two different tests for determining when an employee has been constructively discharged by a discriminatoryemployer. Under the majorityview, an employee who resigns after being subjected to unlawful discriminationis said to have been constructivelydischargedif a reasonableperson would have found the discriminatoryconditions to be intolerable.Under the minorityview, the plaintiff must show not only that conditions were intolerable, but also that the employer created those conditions with the specific intent of forcingher to resign.5In the example given above, a court taking the majorityview might find that the second employee's decision to resign was reasonable, and award her backpay.6A court following the minority view might agree that the resignationwas reasonable,but deny backpayon the grounds that, far from wanting the employee to quit, the supervisor wanted her to remainon the job and comply with his demands. Part I of this comment examines these two different tests in the context of cases decided under both Title VII and the Age Discrimination in Employment Act (ADEA),7isolating the situations
4 See, e.g., Heagneyv. Universityof Wash.,642 F.2d 1157, 1166 (9th Cir. 1981);Muller v. United States Steel Corp.,509 F.2d 923, 930 (10th Cir.),cert. denied, 423 U.S. 825 (1975); Rimediov. Revlon, Inc., 528 F. Supp. 1380, 1390 (S.D. Ohio 1982). workingconditions 6 Obviously,the actions of the employerthat create the intolerable and forcethe employeeto resignmust violateTitle VII or the ADEAbeforebackpaymay be awardedunderthose statutes.For example,an employeewho is harassedbecausehe is overweightor becausethe employerdoes not like the colorof his hair is not entitled to a remedy under Title VII if he eventuallyresigns because the harassmenthas made workingconditions intolerable. some courts appearto disregardthis statutoryrequirement that the acts Surprisingly, causingthe resignationbe acts which violate Title VII or the ADEA. In Mullerv. United States Steel Corp.,509 F.2d 923 (10th Cir.),cert. denied, 423 U.S. 825 (1975),for example, the courtconcludedthat the employerhad discriminated againstthe plaintiffin violationof Title VII by not promotinghim to the position of foreman. The court then examined whetherthe employer'sindependentact of downgrading plaintiffto a laborer'sposition the amountedto a constructivedischarge-even thoughit had not yet determinedwhetherthis act, as opposed to the failure to promotehim, violated Title VII. The court observedthat the plaintiff was downgraded because of the temporaryclosing of a mill; but rather than concludingfrom this that the employer'sact did not violate Title VII, the court concluded that the act was not designed to coerce the resignation.Id. at 929; see also Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir. 1981) (court concluded,from evidence that the plaintiffwas treated no differentlyfrom other employees,that the employer'sacts were not designedto force resignationratherthan that the acts did not violate Title VII). 6 See, e.g., Coley v. ConsolidatedRail Corp., 561 F. Supp. 645, 651-52 (E.D. Mich. 1982). 7 Pub. L. No. 90-202,81 Stat. 602 (1967) (codifiedas amendedat 29 U.S.C. ?? 621-634 cited as the ADEA]. (1982)) [hereinafter The ADEA'sprohibitions are againstage discrimination closelypatternedafter those of

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in which the two tests will lead to different results. Part II weighs the merits of the two tests in light of the purposes of Title VII and the ADEA, and concludes that the reasonable person test better serves those purposes.
I. CONSTRUCTIVE DISCHARGE UNDER TITLE

VII AND THE ADEA

A. The Case Law on Constructive Discharge 1. The Reasonable Person Test. The majority approach holds that an employee has been constructively discharged if an employer's discriminatoryacts result in working conditions so intolerable that a reasonableperson in the employee's position would feel compelled to resign.8This test was first developed in the Fifth Circuit, although the early constructive discharge cases in that circuit seemed to place significant weight on the employer's intent. For instance, in one of the first constructivedischargecases, Young v. Southwestern Savings & Loan Association,9 the Fifth Circuit panel recognized that constructive discharge claims could be brought under Title VII. The court then defined a standard by stating that "if the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge."'0 Some courts cited Young as authority for requiringthe plaintiff to demonstrate that the employer intended to force her to quit." However, the Fifth Circuit backed away from Young's language of specific intent in Calcote v. Texas Educational Foundation,l2 a case indicating that Young required only that the acts which created the intolerable conditions-and not the resignation itself-were intended by the employer. Finally, in Bourque v. Powell Electrical Manufacturing Co.,13 the Fifth Circuit dropped all language of specific intent and explicitly adopted a reasonableperson test. It has adhered to that test in a number of subsequent cases,14 and its approach has been followed by a majority of the text. Title VII. See ADEA ? 4, 29 U.S.C. ? 623 (1982);infra note 92 and accompanying 8 See, e.g., Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65-66 (5th Cir. 1980). 9 509 F.2d 140 (5th Cir. 1975). 0 Id. at 144. " See, e.g., Thompson v. McDonnellDouglas Corp.,552 F.2d 220, 223 (8th Cir. 1977). 1 578 F.2d 95, 98 (5th Cir. 1978) (the district court'sconclusions"shouldbe expanded to reflect ... that the actions which caused Calcote'sworkingconditions to be intolerable were deliberate");see EEOC v. Hay Assocs., 545 F. Supp. 1064, 1085 (E.D. Pa. 1982). 18617 F.2d 61, 65 (5th Cir. 1980). 4 See, e.g., Junior v. Texaco, Inc., 688 F.2d 377, 379-80 (5th Cir. 1982) (suit brought

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federal appellate courts that have consideredthe issue.15 The courts have not always been clear in their use of this approach.For example, the Second Circuitfollowedthe Fifth Circuit step for step by initially adopting the intent-orientedformulation advanced in Young and then later reversingdirection to apply a reasonableperson test.16The District of ColumbiaCircuit also has adopted the Fifth Circuit'sapproach,but has explained its refusal to require specific intent on the grounds that an employer "must be held to have intended those consequences it could reasonably The Sixth Circuit, however, has straddled this have foreseen."17 underTitle VII and 42 U.S.C. ? 1981 (1982));Meyerv. Brown& Root Constr.Co., 661 F.2d 369, 372 (5th Cir. 1981) (Title VII); Welchv. Universityof Tex., 659 F.2d 531, 533-34 (5th Cir. 1981) (Title VII); Pittman v. HattiesburgMun. SeparateSchool Dist., 644 F.2d 1071, 1077 (5th Cir. 1981) (Title VII). 18First Circuit:Alicea Rosada v. GarciaSantiago, 562 F.2d 114, 119 (lst Cir. 1977) for (employeeallegedhe was constructively discharged exercisinghis first amendmentright of free speech);see also Cazzolav. Codman& Shurtleff,Inc., 751 F.2d 53, 56 (lst Cir. 1984) (courtappearedto follow Alicea Rosado in a case decided under the ADEA). Second Circuit:Martin v. Citibank,N.A., 762 F.2d 212, 221 (2d Cir. 1985) (Title VII and section 1981);Pena v. BrattleboroRetreat, 702 F.2d 322, 325 (2d Cir. 1983) (ADEA); Allen v. Colgate-Palmolive No. 79 Civ. 1076-CSH(S.D.N.Y. Mar. 21, 1985) (available Co., on LEXIS, Genfedlibrary,Dist file) (ADEA);Garciav. ForbesMagazine,No. 83 Civ. 3814CSH (S.D.N.Y. Feb. 28, 1985) (availableon LEXIS, Genfed library,Dist file) (Title VII). Third Circuit:Goss v. Exxon OfficeSys. Co., 747 F.2d 885, 887-88 (3d Cir. 1984) (Title VII). Sixth Circuit:Williams v. CaterpillarTractor Co., 770 F.2d 47, 49 (6th Cir. 1985) (ADEA);Geislerv. Folsom, 735 F.2d 991, 996 (6th Cir. 1984) (Title VII); Held v. Gulf Oil Co.,684 F.2d 427, 432 (6th Cir. 1982)(Title VII) (Sixth Circuitis "in accordwith the rule in the Fifth Circuit"). Ninth Circuit:Satterwhitev. Smith, 744 F.2d 1380, 1383 (9th Cir. 1984) (Title VII); Nolan v. Cleland,686 F.2d 806, 812-14 & n.17 (9th Cir. 1982) (Title VII). Eleventh Circuit:Buckleyv. Hospital Corp.of Am., 758 F.2d 1525, 1530-31(llth Cir. 1985) (ADEA);Lincolnv. Boardof Regents,697 F.2d 928, 935 (llth Cir.) (Title VII), cert. denied, 464 U.S. 826 (1983); Henson v. City of Dundee, 682 F.2d 897, 907-08 (llth Cir. 1982) (Title VII). District of ColumbiaCircuit:Clarkv. Marsh,665 F.2d 1168, 1173-76& nn.5, 8 (D.C. Cir. 1981) (Title VII). Althoughthe Seventh Circuithas not directlyaddressedthe issue, severalof its district courts have adopted a reasonableperson approach.See Bernstein v. ConsolidatedFoods Corp.,36 Fair Empl. Prac. Cas. (BNA) 1333, 1337 (N.D. Ill. 1984) (ADEA);Bailey v. Binyon, 583 F. Supp. 923, 928-31 (N.D. Ill. 1984) (Title VII and section 1981);Scott v. Oce Indus., 536 F. Supp. 141, 148 (N.D. Ill. 1982) (Title VII). But see Michaelisv. Polk Bros., Inc., 545 F. Supp. 109, 116-17(N.D. Ill. 1982).On two occasions,the Seventh Circuititself has cited one of the leadingcases for the reasonable See persontest with apparentapproval. Parrett v. City of Connersville, F.2d 690, 694 (7th Cir. 1984) (citing Bourquev. Powell 737 Elec. Mfg. Co., 617 F.2d 61 (5th Cir. 1980)),cert. dismissed,105 S. Ct. 828 (1985);Brownv. Brienen,722 F.2d 360, 365 (7th Cir. 1983) (same). 16See Martinv. Citibank,N.A., 762 F.2d 212, 221 (2d Cir. 1985);Pena v. Brattleboro Retreat, 702 F.2d 322, 325-26 (2d Cir. 1983). 17 See Clarkv. Marsh,665 F.2d 1168, 1175 n.8 (D.C. Cir. 1981).

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gap by noting on occasion that both the employer's specific intent and the foreseeability of the consequences of its actions are relevant.18 Despite these variations, the case-by-case application of the reasonable person test has revealed a few basic principles. Most significantly, courts have determined that, as a matter of law, an isolated violation of an employment discrimination statute does not create intolerable working conditions.'9 The Fifth Circuit explained in Bourque that "we believe that society and the policies underlying Title VII will best be served if, whenever possible, unlawful employment discrimination is attacked within the context of existing employment relationships."20 another court put it, if As the "mere fact of discrimination [were] sufficient grounds for the wronged employee to resign and claim full back pay, an 'employee would be encourage[d] to set himself up as the judge of every grievance.'"21 Consequently, constructive discharge claims have been rejected in cases where the employee was simply denied a promotion or given unequal pay.22Rather, courts have requiredevidence of an "'aggravated situation' beyond 'ordinary discrimination.'"23 Such a situation can be found to exist when the plaintiff was subjected either to a number of instances of discriminatorytreatment or to
18For example, in Held v. Gulf Oil Co., 684 F.2d 427, (6th Cir. 1982), the court stated that "the constructivedischarge issue . . . requires an inquiry into the intent of the employer and the reasonably foreseeable impact of the employer's conduct upon the employee."Id. at 432. In Easter v. Jeep Corp.,750 F.2d 520 (6th Cir. 1984),the court provided this summaryof Held: This court recently concluded in [Held] that the validity of a constructivedischarge claim depends upon the facts of each case and requiresan inquiryinto the intent of the employer and the reasonablyforeseeable impact of the employer'sconduct upon the employee. Additionally, this court ruled that, "a finding of constructivedischargerequiresthe determinationthat. . . workingconditionswould have been so difficultthat a reasonableperson in the employee'sshoes would have felt compelledto resign." Id. at 522-23 (citations omitted) (emphasisadded). 19 See, e.g., Bailey v. Binyon, 583 F. Supp. 923, 929 (N.D. Ill. 1984); B. SCHLEI P. &
DISCRIMINATION 611-12 (1983). LAW EMPLOYMENT GROSSMAN, 20 Bourque, 617 F.2d at 66.
21 Allen v. Colgate-PalmoliveCo., No. 79 Civ. 1076-CSH (S.D.N.Y. Mar. 21, 1985) (availableon LEXIS, Genfed library,Dist file) (quoting Alicea Rosado v. GarciaSantiago, 562 F.2d 114, 119 (1st Cir. 1977)). 22 See, e.g., Pittman v. HattiesburgMun. Separate School Dist., 644 F.2d 1071, 1077 (5th Cir. 1981);Heagneyv. Universityof Wash., 642 F.2d 1157, 1166 (9th Cir. 1981);Bourque, 617 F.2d at 65. 23 Bailey, 583 F. Supp. at 929 (quotingBourque,617 F.2d at 65-66);see, e.g., Clarkv. Marsh, 665 F.2d 1168, 1173-74 (D.C. Cir. 1981); Garcia v. Forbes Magazine,No. 83 Civ. 3814-CSH(S.D.N.Y. Feb. 28, 1985) (availableon LEXIS, Genfedlibrary,Dist file); EEOCv. Hay Assocs., 545 F. Supp. 1064, 1085-86 (E.D. Pa. 1982).

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For one particularlyegregiousinstance of discrimination.24 example, aggravatedcircumstanceshave been found to exist when the asemployee was subjected to continuing sexual harassment,25 onerous job duties,26or given a severe demotion and then signed forced to work face to face with an alleged antagonist.27 Also, it is relevant that the employee attempted unsuccessfully to seek redress from the employer before resigning.28 2. The Specific Intent Test. The minority approachrequires the plaintiff to show not only that workingconditions were so intolerable that a reasonableperson would feel compelled to resign, but also that the employer created those conditions with the specific intent to cause the employee to resign.29 This approachwas first announced by the Tenth Circuit in Muller v. United States Steel Corp.30 There the plaintiff workedin the employer'smill for fourteen years, but was never consideredfor the promotionhe requested. He eventually filed discriminationcharges with a state agency, but "[n]o action was taken" and he resigned several months later.31 The plaintiff, a Spanish-American, introducedstatistics which showed that Spanish-Americanshad been given a disproportionately low percentage of promotions. The employer made promotions based on the ad hoc recommendationsof supervisors.The Tenth Circuit upheld the trial court's finding that making promotions by this method violated Title VII, but reverseda findingthat the plaintiff had been constructivelydischarged.The court noted that there was a "dearthof evidence to show a deliberate effort to make things difficult for the employee so as to bring about his separation."32 In support of this intent requirement, the court looked to
Bailey, 583 F. Supp. at 929-30. See, e.g., Easter v. Jeep Corp.,750 F.2d 520, 523 (6th Cir. 1984);Coley v. Consolidated Rail Corp.,561 F. Supp. 645, 651 (E.D. Mich. 1982). 26 See, e.g., Williams v. CaterpillarTractor Co., 770 F.2d 47, 49-50 (6th Cir. 1985); Meyer v. Brown& Root Constr.Co., 661 F.2d 369, 372 (5th Cir. 1981). 27 See, e.g., Cazzolav. Codman& Shurtleff,Inc., 751 F.2d 53, 56 (1st Cir. 1984). 28 See, e.g., Clark v. Marsh,665 F.2d 1168, 1174-76 (D.C. Cir. 1981) (plaintiffs "repeated but futile attempts to obtain relief"though informalmeans and formaladministrative channelsconstitutedan aggravating lockedinto a posifactor,since she was "essentially tion from which she could apparentlyobtain no relief"). 29 See, e.g., Bristowv. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985). 30 509 F.2d 923 (10th Cir.), cert. denied, 423 U.S. 825 (1975). S' Id. at 924-25. "s Id. at 929. The Tenth Circuitused the same approach Coe v. YellowFreightSys., in Inc., 646 F.2d 444, 454 (10th Cir. 1981) (Title VII) ("dearthof evidence"to show defendant "engagedin a courseof conductdesignedto force"plaintiffto quit).
25

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cases decided under the National Labor Relations Act.33Section 8(a)(3) of the NLRA makes it an unfair labor practice for an emIn ployer to fire an employee on the basis of union membership.34 wished to fire employees because the early NLRA cases employers of their union activities, but wanted to limit their liability under section 8(a)(3). Consequently, the employers made working conditions intolerable in order to force employees to quit. For example, transferredto less desirable harassed,36 employees were demoted,35 jobs,37or assigned more onerous job duties.38Courts crafted the constructive discharge concept to prevent an employer from "[doing] constructively what the act prohibits his doing directly."39 From these cases the rule evolved that an employer constructively discharges an employee when it "deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job because of union activities or union membership."40 And some NLRA cases required not only that the employer have intended the intolerable conditions, but also that it have intended those conditions to result in resignation.41 Relying on this standard
33 Ch. 372, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. ?? 151-169 (1982)) [hereinaftercited as the NLRA]. 34 29 U.S.C. ? 158(a)(3) (1982). Discouragingmembershipin a union includes discouraging participationin concertedactivities. See NLRB v. Great Dane Trailers,Inc., 388 U.S. 26, 32 (1967); Radio OfficersUnion v. NLRB, 347 U.S. 17, 39-40 (1954). A constructive dischargecould also be based on NLRA ? 8(a)(4), 29 U.S.C. ? 158(a)(4) (1982), if an employer discriminatedagainst an employeeand caused her to quit becausethe employeefiled unfair labor practice chargesor gave testimony under the Act. See NLRB v. VacuumPlaters, Inc., 374 F.2d 866, 867 (7th Cir. 1967). s3 See, e.g., NLRB v. Century BroadcastingCorp., 419 F.2d 771, 780 (8th Cir. 1969); NLRB v. United States Air ConditioningCorp., 336 F.2d 275, 276 (6th Cir. 1964); In re AmericanPotash & Chem. Corp.,3 N.L.R.B. 140, 158-59 (1937), enforced,98 F.2d 488 (9th Cir. 1938), cert. denied, 306 U.S. 643 (1939). 36 See, e.g., NLRB v. Holly Bra, Inc., 405 F.2d 870, 872 (9th Cir. 1969);NLRB v. TenShoe Corp., nessee Packers,Inc., 339 F.2d 203, 204 (6th Cir. 1964);NLRB v. Saxe-Glassman 201 F.2d 238, 243 (lst Cir. 1953);In re Sterling Corset Co., 9 N.L.R.B. 858, 866-70 (1938). 37 See, e.g., In re Russell Mfg. Co., 82 N.L.R.B. 1081, 1085 (1949); In re Fellows, 75 N.L.R.B. 662, 669 (1947); In re Palm Beach BroadcastingCorp., 63 N.L.R.B. 597, 612-13 (1945). 38 See, e.g., J.P. Stevens & Co. v. NLRB, 461 F.2d 490, 494-95 (4th Cir. 1972). 39 NLRB v. Holly Bra, Inc., 405 F.2d 870, 872 (9th Cir. 1969) (citation omitted). 40 J.P. Stevens & Co., 461 F.2d at 494; see Sure-Tan, Inc. v. NLRB, 104 S. Ct. 2803, 2810 (1984) (constructivedischarge occurs when, "for the purpose of discouragingunion activity, [the employer]purposefullycreates workingconditionsso intolerablethat the employee has no option but to resign");MontgomeryWard & Co. v. NLRB, 377 F.2d 452, 459 (6th Cir. 1967). 41 For example, in Crystal Princeton Refining Co., 222 N.L.R.B. 1068 (1976), the NLRB announcedthe followingtest: There are two elements which must be proven in order to establish a "constructive First, the burdensimposed upon the employeemust cause, and be intended discharge."

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from the NLRA cases, the Muller court denied backpayto a Title VII claimant because no specific intent was demonstrated.42 The Fourth and Eighth Circuits have also imported the NLRA's intent requirementinto constructivedischargeunder Title VII, requiringthe plaintiff to show that the employer intended to force her to quit.48 But in spite of this requirement,these courts have not insisted on "smokinggun" evidence of employer intent. courts have accepted indiRather, as the NLRA cases instruct,44 rect evidence, such as the employer'sfailure to change conditions it knew were intolerable.45

to cause,a changein his workingconditionsso difficultor unpleasantas to forcehim to resign.Second,it must be shown that those burdenswere imposedbecauseof the employee'sunion activities. Id. at 1069.In applyingthe test to the facts beforeit, the Boardobservedthat "the record, on balance,does not demonstratethat [the employer]wanted [the employee]to quit." Id. Other NLRA cases have been less clear in their applicationof the intent test. In J.P. Stevens & Co., for example,the court noted that the employeracted with "the purpose'of causing[the plaintiff]to resign,'"but announceda standardwhich focusednot on whether the employerintended the resignation,but ratherwhetherthe employermerely intended the conditionsleadingto it. 461 F.2d at 494. For the implications this ambiguityfor Title of text. VII cases, see infra notes 85-86 and accompanying 49 Muller, 509 F.2d at 929.
43 Fourth Circuit:Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985) & (ADEA);Holseyv. Armour Co., 743 F.2d 199, 209 (4th Cir. 1984)(Title VII), cert. denied, 105 S. Ct. 1395 (1985);EEOCv. FederalReserveBank, 698 F.2d 633, 672 (4th Cir. 1983) (Title VII), rev'd on other grounds,104 S. Ct. 2794 (1984). Eighth Circuit:Craft v. Metromedia,Inc., 766 F.2d 1205, 1217 (8th Cir. 1985) (Title VII); Johnsonv. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981) (Title VII and section 1981);Thompsonv. McDonnellDouglasCorp.,552 F.2d 220, 223 (8th Cir. 1977) (Title VII and section 1981). 44 In cases applyingthe NLRA courtshave found a varietyof sourcesof evidencerelevant to whethera constructivedischargehas occurred.These include the employer'spost hoc explanationof its actions,testimonyabout what was said at the time of the actions in dispute,and evidenceabout how other employeesweretreated.See, e.g., J.P. Stevens & Co. v. NLRB, 461 F.2d 490, 494-95 (4th Cir. 1972) (comparison betweenthe employer'streatment of plaintiff employee and other employees);NLRB v. Tennessee Packers, Inc., 339 F.2d 203, 204 (6th Cir. 1964) (testimonyabout derogatory statementsmade by supervisors); CrystalPrincetonRefiningCo., 222 N.L.R.B. 1068, 1068-69(1976) (Boardevaluatesreasonableness of supervisor's reasonsfor transferring plaintiff employee).Based on all the evidence, the trier of fact decides whether,"on balance,"the employerintended to force the employeeto resign.See, e.g., Crystal Princeton Refining Co., 222 N.L.R.B. at 1069. Some cases explainthis inquiryin terms of whetherthe employershould have foreseenthe resigrule in laborrelationslaw that 'a man nation,on the groundsthat "[i]t is a well recognized is held to intend the foreseeableconsequencesof his conduct.'" Tennessee Packers,Inc., 339 F.2d at 204-05 (quotingRadio OfficersUnion v. NLRB, 347 U.S. 17, 45 (1954)). 46 See, e.g., Holseyv. Armour Co., 743 F.2d 199, 209 (4th Cir. & 1984),cert. denied, 105 S. Ct. 1395 (1985).

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B. Comparison of the Two Tests The two principal tests for evaluating constructive discharge claims under Title VII and the ADEA have very different orientations. The reasonable person test focuses on the effect of the employer's actions on the employee, asking whether working conditions were so intolerable that a reasonableperson would have been forced to quit. The specific intent test focuses instead on the employer, asking whether the employer made conditions intolerable with the intent to force the employee to quit. In many cases, however, the two tests may lead to the same result. This part of the comment identifies the kinds of cases where the tests will yield similar results and those where the tests will yield different results. 1. The Overlap Between the Two Tests. The most fundamental source of overlap between the two tests stems from the fact that under both tests the plaintiff must demonstrate that a reasonable person would have found the workingconditions intolerable.46 Thus if conditions are found to have been tolerable, the plaintiff's claim will fail under either test. Courts which use the specific intent test vary somewhat in their approach to this overlap. Some courts distinguish between the two parts of the specific intent test-intolerable conditions and intent-and hold that such a Other plaintiff has failed to demonstrate objective intolerability.47 courts tend to collapse the two parts into one, and hold that the absence of intolerable conditions demonstrates that the employer did not intend to force the employee to resign.48For example, in Johnson v. Bunny Bread Co.,49 the plaintiff had claimed that the "close monitoring and harsh treatment" that he received from his supervisors formed the basis of a constructive discharge. However, all the other employees received the same treatment, a fact that the court said "rebutt[ed] any inference that [the employer's] handling of [the plaintiff] was done with the intention of forcing him to resign. Certainly [the employer] did not wish to force all of its employees to resign."60 A different kind of overlap stems from the fact that if intoleraSee supra text accompanyingnotes 8, 29. See, e.g., Bristowv. Daily Press, Inc., 770 F.2d 1251, 1255-56(4th Cir. 1985);Craftv. Metromedia,Inc., 766 F.2d 1205, 1217 (8th Cir. 1985). 48 See, e.g., EEOCv. Federal Reserve Bank, 698 F.2d 633, 672 (4th Cir. 1983), rev'd on other grounds, 104 S. Ct. 2794 (1984); Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 454 (10th Cir. 1981). 49 646 F.2d 1250 (8th Cir. 1981).
46

47

60 Id. at 1256.

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ble conditions are found to exist, the existence of those conditions can be highly probative evidence of the employer'ssubjective intent. A good example is a Fourth Circuitcase, Holsey v. Armour& Co.51 There the court upheld a finding that the employerhad violated Title VII both by discriminatingagainst seven black employees and by retaliatingagainst them for having filed discrimination charges. One of these employees alleged constructive discharge. On eight occasions he had been passed over for supervisoryand sales positions, which were given to less qualified and junior white employees. After the employee filed a discriminationcharge, he was given a supervisoryposition but denied equal status with white supervisors. Thereafter he was "systematicallyharassed,"his shift was changed twice to accommodatewhite supervisors,and his authority was undercutby the general foreman,who granted leave to employees supervisedby the plaintiff without advising him in advance.52 Despite the plaintiffs complaintsto the employer,the detreatment continued. These events led the court to congrading clude that "the company knew [he] was denied equal status as a supervisorand was subjected to harassment but failed to correct these practices."53 The employerarguedthat the plaintiff had failed to show that In it had "acted with the intent to force the employee to resign."54 the court acknowledgedthat evidence of the employer's response, intent was required, but found circumstantial proof sufficient. "The fact that higher officials knew of [the plaintiffs] untenable position and took no action to correct it supports the district court's finding that the employment conditions were 'imposed by the company.' This finding satisfies the requirement of deliberateness."55 Thus the existence of intolerableconditionscan be the critical element in both of the principaltests for constructivedischarge.In many cases, this overlap minimizes the practical differences between the tests.56
5" 743 F.2d 199 (4th Cir. 1984), cert. denied, 105 S. Ct. 1395 (1985). "8 Id. at 209.

Id. Id. s5 Id. I6 The overlapbetween the tests can also be seen in Meyer v. Brown& Root Constr. that she Co., 661 F.2d 369 (5th Cir. 1981).Whenthe plaintiffthere informedher supervisor was pregnant,she was promisedmaternityleave when she needed it. However,when the plaintiff arrivedat work one day several months later, she found a replacementsitting at
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2. Differences Between the Tests. Although the specific intent and reasonable person tests may overlap substantially, they are not identical. In many cases employees may be subjected to intolerable conditions even though the employer does not intend to force the employee to resign. In such cases, a court applying a specific intent test would not find a constructive discharge. In Craft v. Metromedia, Inc.,67 for example, a television newsperson claimed that her employer had discriminatedagainst her by demoting her from anchorpersonto reporter, and by applying unusually strict standards to her personal appearance. The Eighth Circuit upheld the trial court's finding that those actions had not violated Title VII and did not create intolerable working conditions. But the court also observed that even if those actions had made the plaintiffs working conditions intolerable, she would nevertheless fail in her constructive discharge claim. The reason was that the trial court had also found that the employer had not intended to force the plaintiff to quit, but rather, had wanted her to The specific intent and reasonable person tests remain at work.58 compel different results in such a case. In Clark v. Marsh,69the plaintiff sought various promotions and lateral transfers through the Army's CareerProgram for Civil her desk. She was then ordered by her supervisorto clear out her desk because she was going to work in a warehousewith two men who performedheavy manual labor. When the plaintiff responded that she could not perform such work without endangeringher own health and that of her unborn child, the supervisormerely "snickered"and indicated that he did not care. Id. at 371. As a result, the plaintiff resigned. Applying a reasonableperson test, the Fifth Circuit upheld a finding that the circumstances were sufficientlyaggravatedto amount to a constructivedischarge.Id. at 372. However, it is likely that a court applyinga subjectiveintent test would have reachedthe same result. Given the nature of the choice put to the plaintiff-resign, or run a risk of harming her baby-it would seem almost impossiblefor the employerto rebut the inferencethat it intended to force the plaintiff to quit. A similar but somewhat more difficult case is Williams v. CaterpillarTractor Co., 770 F.2d 47 (6th Cir. 1985), in which the Sixth Circuit upheld a finding that the plaintiff had been constructivelydischargedbecause of her age in violation of the ADEA. The plaintiff had been employed as a "benefits clerk," and resigned at the age of 52 after she was demoted to a mail clerk. In that job, she would have been requiredto ride a three-wheeled cycle to deliver packagesor boxes which sometimesweighedbetween fifty to eighty pounds. Id. at 49-50. Althoughthe Sixth Circuitappearedto apply a reasonableperson test, a court applying a subjectiveintent test could infer from the nature of the demotion that the employer intended to force the employee to resign. 57 766 F.2d 1205 (8th Cir. 1985). "8 Id. at 1217; see also EEOC v. Federal Reserve Bank, 698 F.2d 633, 672 (4th Cir. 1983) ("There is absolutely no evidence that the defendant sought by its action 'to force [the plaintiff] to quit.' The evidence is quite clearly to the contrary.[The plaintiff's]supervisor sought to persuade her not to quit."). 89 665 F.2d 1168 (D.C. Cir. 1981).

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emPersonnelAdministration.Althoughshe had an "outstanding" ployment record, she received only one permanent promotion in over a decade. She had made numerous informal efforts to have her situation corrected and finally filed a formal administrative complaint, but to no avail. She resigned after she was denied a permanentpromotionto the position of directorof her office. She had filled that position on an acting basis and had received performanceratings of "outstanding"and "satisfactory," but the job was given to a younger woman with no supervisoryexperience.60 Applying a reasonable person test, the D.C. Circuit found that these circumstances were "aggravatingfactors" indicating constructive discharge.61 A court applying a specific intent test would have reached a contrary result. The employer in Clark had introduced evidence-which the appellate court dismissed as "irrelevant"under a reasonableperson test-that the plaintiff had in fact been "enFurthermore,the employer'sactions recouraged"not to resign.62 flected no consistent scheme: the promotional decisions were spread out over a period of many years and made by a panel whose composition probably changed during that time.63A court would thus have difficulty concluding that the employer intended the plaintiff to resign.
II. CHOOSING THE APPROPRIATETEST

No court has adequatelyjustified its choice of either a reasonable person or a specific intent test. Courts which adopt the specific intent test seem to do so primarily out of deference to the NLRA cases.64To the extent that a justification has been offered for adoptingthe reasonableperson test, it is generallythat the test faithfully implements the policies of the statutes as well as other policy objectives.65That defense at least seems to identify the
60 Id. at 1174-75 & n.7. 61 Id. at 1175-76. 62 Id. at 1175 n.8. 63 Id. at 1170; see Clark v. Alexander, 489 F. Supp. 1236, 1240 (D.D.C. 1980), aff'd in part & rev'd in part sub nom. Clark v. Marsh, 665 F.2d 1168 (D.C. Cir. 1981). 64 See, e.g., Muller v. United States Steel Corp., 509 F.2d 923, 929 (10th Cir.), cert. denied, 423 U.S. 825 (1975). 65 See, e.g., Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65-66 (5th Cir. 1980). In comparing the reasonable person test to the specific intent test, the court said only that the latter is "inconsistent . . . with the realities of modern employment." Id. at 65. The court's discussion of the policies served by the reasonable person test came in the context of the plaintiffs claim that the mere fact that she had been subject to salary discrimination constituted a constructive discharge. Id. at 65-66; see supra note 21 and accompanying text.

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proper inquiry:as with any issue arising under a statute, the starting point for analysis should be the text and history of the statute. This part of the comment undertakes that analysis, and concludes that the reasonable person test best serves the purposes of Title VII and the ADEA. A. Title VII Because the issue of whether a constructive discharge has occurred arises only after a court has found that the actions alleged to have caused the resignation violated Title VII, the relevant provision to be examined is section 706(g), which governs the use of remedies in Title VII litigation. This section provides that once a violation of Title VII has been established, "the court may ... order such affirmative action as may be appropriate, which may include . .. reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate."66 Supreme Court cases that have considered the use of the backpay remedy have set out arguments which, by implication, favor adoption of the reasonable person test. In the leading case, Albemarle Paper Co. v. Moody,67the Court considered whether black employees locked into low-paying jobs by a discriminatory seniority system were presumptively entitled to backpay.68The Court began its analysis by conceding that, under the plain language of section 706(g), backpay was an equitable remedy that Howcould be granted or withheld at the discretion of the court.69 ever, in exercising that discretion, courts were to be guided by two overarchingpurposes of Title VII: the "prophylactic"objective of eradicating discrimination in employment, and the compensatory objective of "mak[ing] persons whole for injuries suffered on acThe Court concount of unlawful employment discrimination."70 cluded that "given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate [those] central statutory purposes."71 In the context of constructive discharge, these purposes are best served by a reasonable person standard. Albemarle under66 42 U.S.C. ? 2000e-5(g) (1982).
7 68
09 70 71

422 U.S. 405 (1975).
Id. Id. Id. Id. at at at at 409. 415-16. 417-18. 421.

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stood Title VII to prevent more than merely intentionalviolations; the backpayremedy "'provide[s] the spur or catalyst which causes employers . . . to self-examine and to self-evaluate their employment practicesand to endeavorto eliminate, so far as possible, the last vestiges'" of discrimination.72 specific intent test contraA venes Congress'spurposeby shielding employersfrom backpayliability despite working conditions that are intolerably discriminatory in violation of Title VII.73 The reasonableperson test is also the only approachthat adequately fulfills Congress'scompensatorypurpose.Accordingto Albemarle,Title VII contemplatesthat victims of discriminationwill be "made whole" by being compensatedto the full extent of their This suggests that the inquiry most relevant to construcinjury.74 tive dischargeshould be the effect of the discriminatory conditions on the employee regardlessof the extent to which that effect was intended. Only then will victims be made whole for intolerableand illegal workingconditions. Moreover,the Court made it clear that the desirabilityof prevention and compensationare unrelated to the employer'sintent. The Court rejected the argumentthat backpayshould be awarded only when the employer violated Title VII in "bad faith": [I]f backpaywere awardableonly upon a showingof bad faith, the remedy would become a punishment for moral turpitude, rather than a compensationfor workers'injuries.This would read the "make whole" purpose right out of Title VII, for a worker'sinjuryis no less real simply because his employerdid not inflict it in "bad faith." Title VII is not concerned with the employer's "good intent or absence of discriminatoryintent" for "Congressdirected the thrust of the Act to the consequences of employment practices, not simply the motivation."75 This reasoningseems equally persuasivein the context of constructive discharge. To paraphrasethe Court, the injury suffered
7P Id. at 417-18 (quotingUnited States v. N.L. Indus.,Inc., 479 F.2d 354, 379 (8th Cir. 1973)). 7S Cf. 422 U.S. at 417 ("If employersfaced only the prospect of an injunctiveorder, they would have little incentiveto shun practicesof dubiouslegality."). 74Id. at 418 (" 'The generalrule is, that when a wronghas been done, and the law gives a remedy,the compensation shall be equalto the injury.'") (quotingWickerv. Hoppock,73 U.S. (6 Wall.) 94, 99 (1867)). 76 422 U.S. at 422 (quotingGriggsv. Duke Power Co., 401 U.S. 424, 432 (1971)) (citations and footnote omitted) (emphasisin original).

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by an employee who is subjected to intolerable discrimination "is no less real" because the employer did not impose those conditions with the purpose of forcing the employee to resign. Although the Court in Albemarle suggested that the absence of bad faith may an "[open] the door to equity" for the employer,76 employer that is responsible for intolerable discrimination would seem to have a weak claim on the Chancellor'sconscience. The reasonable person test is also consistent with the mitigation-of-damages provision in section 706(g) of Title VII. This provision reduces any backpay remedy by the amount of "[i]nterim The Suearnings or amounts earnable with reasonablediligence."77 preme Court has applied this section to disallow backpay where, for example, the employer has offered to reinstate an employee discharged in violation of Title VII.78In reaching this holding, the Court compared the new job offered to the employee to the position held prior to the discharge. Since the new job was "substantially equivalent" to the employee's former position, the employee was entitled to no backpay after the offer was made.79 The circumstances surrounding mitigation of damages after discharge are analogous to the circumstancessurroundingthe employee's decision to resign in a case of constructive discharge. In both instances the question is whether the employee is entitled to backpay in spite of the employer's willingness to continue the employment relationship. Under the statute, the relevant standard in the mitigation case is one of reasonablenesson the part of the employee. Likewise, when the issue is backpay for constructive discharge, the proper focus should be the reasonableness of the employee's decision to resign. The reasonable person test, which requires working conditions to be intolerable before the employee may resign, ensures that this decision is a reasonable one. Despite these arguments in favor of a reasonable person approach, there are at least two possible arguments for adopting a specific intent test. The first argument underlies most decisions adopting an intent approach and finds support in Albemarle's language: since the backpay provision of Title VII was "expressly modeled" on the NLRA,80perhaps it was intended to adopt the intent-based approach commonly used in the NLRA constructive
76 77 78 79 80

422 U.S. at 422. 42 U.S.C. ? 2000e-5(g) (1982). See Ford Motor Co. v. EEOC, 458 U.S. 219, 241 (1982). Id. at 232. Albemarle, 422 U.S. at 419-20.

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discharge cases as the standard for constructive discharge cases under Title VII.8' This conclusionhas several problems.At a basic level, it exaggerates the importanceof the NLRA to the interpretationof Title VII. The Court's "expressly modeled" assertion was based on the following statement in the legislative history: The relief [availablein Title VII suits] would be an injunction against future acts or practices of discrimination, but the court could order appropriateaffirmativerelief, such as hiring or reinstatement of employees and the payment of back pay. This relief is similar to that available under the National Labor Relations Act .... 82 Given the vagueness of this reference to the NLRA, it is not surprising that the Supreme Court has stated subsequently that "[t]he principles developed under the NLRA generally guide, but do not bind, courts in tailoring remedies under Title VII."83 Furthermore,in Albemarle the Court's actual conclusion was that "[w]e may assume that Congresswas aware that the Board, since its inception, has awardedbackpay as a matter of course."8 While it may be plausible to argue that Congress"was aware"of a Board practice with such wide implications,it is far less likely that Congress was aware of the Board's practice with respect to the comparativelynarrowquestion of constructivedischarge. Moreover,it is far from clear that the NLRA cases support a specific intent test. Although the NLRA cases enunciated a test which focused on the employer's intent, this was most likely because the employers in anti-union campaigns invariably had the intent to make workingconditions intolerableor to force the resignation of union sympathizers.85 other words,the courts were not In faced with cases like those that sometimes arise under Title VII or the ADEA, in which employers,by their discriminatory acts, create intolerableworkingconditionswithout intending to force their employees to resign. If the courts had faced such cases under the NLRA, they might well have elected to ignore the employer'sintent and apply the reasonableperson test, for the NLRA backpay
81

See supra notes 33-42 and accompanying text.

110 CONG. 7214 (1964) (interpretive REC. memorandum introduced SenatorsClark by and Case),cited in Albemarle,422 U.S. at 419 n.11. The Courtalso cited a similarcomment made by SenatorHumphrey.See 422 U.S. at 419 n.ll (citing 110 CONG. 6549 (1964)). REC.
83 84

82

86

Ford Motor Co., 458 U.S. at 226 n.8. Albemarle, 422 U.S. at 419-20. See, e.g., J.P. Stevens & Co. v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972).

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provision, like those of Title VII and the ADEA, is designed to "make whole" the employee.86Thus, the Title VII cases should be considered independent from the NLRA cases. The second argument favoring the specific intent test is found in Title VII itself. Section 706 establishes a procedure designed to give the Equal Employment Opportunity Commission an opportunity to resolve employment discrimination disputes "by informal methods of conference,conciliation, and persuasion."87 That procedure reflects a strong congressional preference for the voluntary resolution of employment discriminationdisputes.88It could be argued that a voluntary settlement is more likely to occur if the employee attempts to oppose the unlawful employment practice while remaining on the job, rather than poisoning the situation further by resigning.89This view is buttressed by section 704(a), which makes it an unlawful employment practice for an employer to retaliate against an employee because the employee has "opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge [against the employer]."90 However, the reasonable person test is flexible enough to accommodate the objective of private reconciliation. One of the factors which is commonly considered in applying the test is whether the employee gave the employer an opportunity to correct the alleged wrong before the employee quit.91In some cases it might be considered essential that the employee give the employer that opportunity; in others, it might be clear that such an effort would be futile. As long as those factors are given careful consideration by the trier of fact, the reasonable person test is fully consistent with the policies behind sections 704(a) and 706.
See NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263 (1969); Nathanson v. NLRB, 344 U.S. 25, 27 (1952);Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197 (1941). 87 42 U.S.C. ? 2000e-5(b) (1982). 88 See, e.g., Alexanderv. Gardner-Denver Co., 415 U.S. 36, 44 (1974); Comment,Collateral Attacks on Employment Discrimination Consent Decrees, 53 U. Cm. L. REV.147, 168-69 (1986). 89 See Young v. SouthwesternSav. & Loan Ass'n, 509 F.2d 140, 146 (5th Cir. 1975) J., (Thornberry, dissenting);see also Bourquev. Powell Elec. Mfg. Co., 617 F.2d 61, 66 (5th Cir. 1980). 90 42 U.S.C. ? 2000e-3(a) (1982);see Note, Choosinga Standard for ConstructiveDisL. 587, 616 (1986). charge in Title VII Litigation, 71 CORNELLREV. 91 See supra note 28 and accompanyingtext.
88

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B. The ADEA Similar argumentscan be advancedfor adopting a reasonable person test under the ADEA. In drafting the ADEA, Congress drew heavily upon Title VII. The ADEA's substantive prohibitions against age discriminationare patterned after those of Title VII, and include a prohibitionon retaliationsimilarto section 704(a) of Title VII.92In addition, both the ADEA and Title VII contain procedural requirementsaimed at facilitating the informal resolution of employment discrimination disputes.93 Most important, the dominant policy objectives of the ADEA are parallel to those of Title VII: a prophylacticobjective of eliminating particularforms of discrimination, and a compensatory objective of providing make-wholerelief to the victims of such discrimination.94 Indeed, for the purposes of this comment, the only relevant difference between the two statutes centers on section 7(b) of the ADEA,95 which governs the use of remedies. In drafting section 7(b), Congressdrew not upon Title VII, but upon the Fair Labor Standards Act (FLSA).96Under section 7(b), a violation of the ADEA is "deemed"to be a violation of the FLSA, and "[a]mounts owing to a person as a result of a violation . . shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of [the FLSA]."97 Although Congressmade some modifications, on the whole the ADEA's remedial provisions"essentially follow those of the [FLSA]."98 This remedial scheme of the ADEA differs in two ways from that of Title VII, with both differencesfavoringthe adoption of a reasonable person test. First, "the ADEA incorporatesthe FLSA provision that employers 'shall be liable' for [backpay], while
92 See of supra note 1. The Supreme Court has observed,"the prohibitions the ADEA were derived in haec verba from Title VII." Lorillardv. Pons, 434 U.S. 575, 584 (1978). 93 CompareTitle VII ? 706(b), 42 U.S.C. ? 2000e-5(b)(1982), with ADEA ? 7(d), 29 U.S.C. ? 626(c) (1982).The pro-settlement policyof Title VII is discussedsupra at notes 8788 and accompanying text. For a discussionof the parallel policy in the ADEA, see H.R.

96 29 U.S.C. ? 626(b) (1982). " Ch. 676, 52 Stat. 1060 (1938) (codifiedas amendedat 29 U.S.C. ?? 201-219(1982)) [hereinaftercited as the FLSA];see Lorillard,434 U.S. at 578-85;Note, Set-Offs Against Back Pay AwardsUnder the Federal Age Discriminationin EmploymentAct, 79 MICH. L.
REV.1113, 1113 (1981). 97 29 U.S.C. ? 626(b) (1982). 98 HOUSEREPORT,supra note 93, at 5, reprinted in 1967 U.S. CODE CONG. AD. NEWS & at 2218.

REP.No. 805, 90th Cong., 1st Sess. 5 (1967), reprinted in 1967 U.S. CODE CONG. AD. NEWS & 2213, 2218 [hereinafter cited as HOUSE REPORT]. 94 See Rodriguez v. Taylor, 569 F.2d 1231, 1237 (3d Cir. 1977),cert. denied, 436 U.S. 913 (1978); see also Lorillard, 434 U.S. at 584.

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under Title VII, the availability of backpay is a matter of equitable discretion."99 Although a court's discretion to deny backpay under Title VII is quite limited,100 difference between the two statthe utes implies that Congresswas somewhat more solicitous of plaintiffs in ADEA cases.'0' Second, the ADEA does not contain any provision analogous to Title VII's requirement that "[i]nterim earnings or amounts earnable with reasonable diligence" be deducted from the plaintiffs backpay award.'02 To the extent that this omission means anything at all, it again suggests that Congress was even more generous toward plaintiffs under the ADEA than it was under Title VII.103 In sum, the argument for adopting a reasonable person test is,
99 Lorillard, 434 U.S. at 584. 100 See supra notes 67-71 and accompanyingtext. 101 McDowellv. Avtex Fibers, 740 F.2d

Cf. Inc., 214, 216-17 (3d Cir. 1984) (the reasons supportingthis court's doctrine concerningTitle VII . . . apply ever more so to this case involving the ADEA"),vacated & remanded, 105 S. Ct. 1159 (1985). 102 Title VII ? 706(g), 42 U.S.C. ? 2000e-5(g)(1982).The SupremeCourthas characterized the duty to mitigate found in Title VII as a duty "rootedin [the] ancient principle of law ... to use reasonablediligencein finding other suitable employment."Ford MotorCo. v. EEOC, 458 U.S. 219, 231 (1982). 103 This absence of an express duty to mitigate damageshas several possible explanations. Congressmay have simply failed to consider the issue. Cf. Note, supra note 96, at 1118 ("The more reasonableconclusionis that Congresssimply did not considerthe problem."). If so, the issue of mitigationwould presumablybe resolved by referringto the twin purposesof the ADEA,as well as more generalpolicy and equitableconsiderations. RodCf. riguez, 569 F.2d at 1243 (consideringthe question of offsets in light of the ADEA's "makewhole relief objective").That inquiry would seem to lead to the conclusion that the duty should be similar to that requiredunder Title VII. See Coates v. National Cash Register Co., 433 F. Supp. 655, 662 (W.D. Va. 1977) (althoughthe ADEA does not expressly require mitigation, "there seems to be no reason" for applying a different duty under the ADEA than under Title VII). Alternatively,Congressmay have assumed that common law principles of mitigation would apply. Cf. Note, supra note 96, at 1118. Althoughthe FLSA did not expresslyaddress the issues of mitigation and setoff, some courts had requiredsetoffs in FLSA cases, apparently drawingon commonlaw principles.See, e.g., Mitchell v. Dyess, 180 F. Supp. 852, 854 (S.D. Ala. 1960). Congressmay have assumedthat courts would similarlyapply commonlaw principles under the ADEA. If so, the plaintiffs duty to mitigate under the ADEA would again be similar if not identical to that under Title VII. Finally, Congressmay have intended to reduce or eliminate the duty to mitigate. Cf. Note, supra note 96, at 1118 ("Becausethe ADEA does not explicitly provide for set-offs, plaintiffs can argue that Congressdid not intend to limit awardsto net loss."). This view derives implicit support from repeatedexpressionsof congressionalconcernabout the difficulties faced by older workersin finding new work after they have lost their jobs. See, e.g., REC. 113 CONG. REC. 34,751 (1967) 34,744 (1967) (statement of Rep. Pucinski); 113 CONG. (statement of Rep. Dwyer). This would suggest that Congresswas even more generoustoward plaintiffs under the ADEA than it was under Title VII. It should be noted that the issue of constructivedischargeunder the FLSA apparently was not considereduntil quite recently;the court in that case applied a reasonableperson test. See Ford v. Alfaro, Nos. 85-1615, 85-1825, slip op. at 12-14 (9th Cir. Mar. 27, 1986).

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if anything, stronger under the ADEA than under Title VII. The landscapeof the debate is essentially the same under the two statutes, with the exception of the remedial schemes. To the extent that any real differencesexist between those schemes, they suggest that Congresswas more solicitous of plaintiffs in ADEA cases. If so, then the reasonableperson test, which does not place the additional and unnecessaryburden on the employee of having to prove an employer'sspecific intent, is even more consistent with the purposes of the ADEA than it is with Title VII.
CONCLUSION

Difficult remedial issues arise when employees resign from their jobs after being subjected to conditions that violate Title VII or the ADEA. All courts agree that such employees cannot recover backpay for the period after they quit unless a reasonableperson would have found those conditions to be intolerable. However, some courts also require a showing that the employer imposed those conditions with specific intent to force the plaintiff to resign. In drafting Title VII and the ADEA, Congressmanifested two overarchingpurposes:the prophylacticobjectiveof eliminatingdiscriminationfrom the workplace,and the compensatoryobjectiveof providingmake-wholerelief to victims of discrimination.The reasonable person test serves both of those objectivesbetter than does the specific intent test. Furthermore,the reasonableperson test is wholly consistent with subsidiary congressionalpurposes, such as fostering the informal resolution of employment disputes.
Sheila Finnegan