 Several years ago, we started seeing the trend of “quiet firing” (often in tandem with “quiet quitting”) emerge. And while the headlines may have slowed, the practice has not, despite the serious legal risks it entails. Many managers are drawn to the concept—indeed, most people do not enjoy confrontation, particularly something as difficult as an employee termination. Yet, while the practice may feel less awkward in the short term, its long-term consequences can be significant, including an organization’s inability to successfully defend against discrimination and retaliation claims. What Is Quiet Firing?
For those unfamiliar with the term, quiet firing refers to subtle, indirect methods by which employers encourage employees to leave their jobs voluntarily. This practice often includes tactics like reducing an employee’s responsibilities, isolating them from team projects, “ghosting” employees when they ask questions, limiting opportunities for growth or promotions, or making their work environment uncomfortable. An employee may also be given fewer resources or support, leading to frustration and job dissatisfaction. While no direct termination or performance counseling occurs, the employee may feel compelled to leave due to the increasingly unsupportive work environment. Essentially, the employee is pushed to resign voluntarily. The Legal Risks of Quiet Firing When an employee subject to quiet firing has a protected characteristic (e.g., race, disability, gender, pregnancy) or has engaged in protected activity (e.g., filing a complaint of harassment or taking FMLA leave), the risks of quiet firing may be felt at every stage of the burden-shifting framework under which the majority of employment lawsuits proceed. At the first stage, in which an employee must satisfy their prima facie case, many tactics seen with quiet firing may be enough to constitute an adverse employment action. This risk is of particular concern following the United States Supreme Court’s decision in Muldrow v. City of St. Louis earlier this year, with the Court broadening the standard for when an action is considered adverse for a discrimination claim. Even if a single tactic were insufficient, an employee can point to multiple tactics to demonstrate that their working conditions were so intolerable that a reasonable person in their position would have been compelled to resign, i.e., a constructive discharge. Constructive discharge generally qualifies as an adverse employment decision. If an employee satisfies their prima facie case of discrimination or retaliation, the burden shifts to the employer to articulate legitimate, non-discriminatory/non-retaliatory reasons for the actions. While that burden is known throughout the case law as “exceedingly light,” even that light burden can be challenging to satisfy if the reason for an employer’s actions was to push an employee to resign. At the final stage of the burden-shifting framework, where an employee can overcome an employer’s legitimate reasons with evidence of pretext, quiet firing often lacks documentation and clear performance issues. Pretext becomes a much easier argument for an employee without that paper trail. Mitigating the Risks of Quiet Firing Here are a few ways employers can protect themselves:
Quiet firing may seem like a way to avoid conflict and employee terminations, but it can create significant legal consequences for employers. Taking the time to educate your managers and supervisors about the risks of quiet firing can go a long way in providing stronger protection from lawsuits and facilitating a fair, respectful work environment for all employees. Comments are closed.
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