Constructive discharge seems to be getting a fair amount of attention from the courts these days. The Supreme Court dealt with it last month, holding in Suders, discussed here, that it would not automatically prevent the assertion of the Ellerth/Faragher affirmative defense in a sexual harassment case. This week, the 6th Circuit answers the question of whether the refusal to provide a requested accommodation under the Rehabilitation Act, could rise to the level of constructive discharge. The answer -- yes. Smith v. Henderson (6th Cir. 7/15/04) [pdf].
The district court granted summary judgment solely on plaintiff's failure to establish a prima facie case, since without constructive discharge there was no adverse employment action. Finding sufficient evidence to raise questions about whether: 1) plaintiff was a qualified individual with a disability, 2) she had asked for an accommodation, and 3) the requested accommodation was unreasonable, the Court took the next step in its holding: "Assuming that Smith was denied a reasonable accommodation that forced her to work well in excess of her medical restrictions, a jury reasonably could infer that the USPS (through Mullin) knew that Smith’s working conditions would become intolerable to a reasonable person suffering from her particular disability." Since such a finding could support constructive discharge, thus establishing a prima facie case, the summary judgment was improper.
Of interest, Judge Sutton who was strongly opposed for confirmation by disability advocacy groups, see the statement of People for the American Way, was a member of the panel.