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Copyright (c) 1987 Fordham Law Review
Fordham Law Review

NOTE: CONSTRUCTIVE DISCHARGE UNDER THE ADEA: AN ARGUMENT FOR THE INTENT STANDARD.

May, 1987

55 Fordham L. Rev. 963

Author

Ira M. Saxe

Excerpt

INTRODUCTION

The Age Discrimination in Employment Act of 1967, as amended (ADEA), 1 prohibits employers 2 from discriminating on the basis of age against individuals forty years of age or older. 3 An employer may not discharge 4 an employee within the protected group based on his age, 5 except as provided by law. 6 In addition, the ADEA recognizes the doctrine of constructive discharge, 7 which occurs when the employer creates working conditions so intolerable that a reasonable employee would be compelled to resign. 8

There is a split of authority concerning the elements that an ADEA plaintiff must prove in order to establish constructive discharge. 9 A majority of courts require the plaintiff to prove only that the employer deliberately created working conditions that were so intolerable that a reasonable employee would be compelled to resign. 10 This is known as the "reasonable person" 11 standard, or the "objective" 12 standard. A minority of courts require the plaintiff to prove both intolerable working conditions and the employer's intent to compel the employee's resignation. 13 This is known as the "employer intent" standard. 14

Part I of this Note describes the two standards, with particular emphasis on ADEA cases. Part II presents arguments in favor of the employer intent standard based on general principles of employment discrimination law from both the ADEA and Title VII of the 1964 Civil Rights Act (Title VII). Part III argues that the employer intent standard is particularly appropriate ...
 
 
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