Benefits and Compensation

Compensation: Can A Constructive Discharge Claim Be Based On Unequal Pay?

by Martin J. Regimbal

There has been considerable publicity about the “pay gap” between men and women. A recent case from the federal trial court in Hattiesburg dealt with a constructive discharge claim based on a claim of unequal pay. Let’s see how the court ruled.


What was the aggravating factor?

“Maggie” was the administrator and director of nursing at the Hattiesburg and Biloxi locations of St. Joseph Hospice of Southern Mississippi. She was paid $93,000 per year. St. Joseph later hired “Bob” to work as the executive director of its Biloxi location. He was paid $105,000 per year.

After learning about the pay discrepancy, Maggie resigned and filed both an Equal Pay Act (EPA) claim and a constructive discharge claim. St. Joseph asked the court to dismiss the constructive discharge claim.

The court held that Maggie couldn’t succeed on her constructive discharge claim. To establish such a claim, a former employee must show that the employer made her working conditions so intolerable that a reasonable employee would feel compelled to resign.

The court noted that a discriminatory act, even if it involves unequal pay, isn’t sufficient on its own to establish such a claim. The employee must be able to point to aggravating factors like intentional badgering, harassment, or humiliation.

Because Maggie didn’t offer evidence of the aggravating factors needed to support her constructive discharge claim, the court dismissed it. The court also held that if she prevails on her equal pay claim, she won’t be entitled to any back pay beyond the date of her resignation. Thomas v. St. Joseph Hospice of Southern Mississippi, LLC, U.S. District of Mississippi 2016 WL 4148405.


The court’s decision didn’t include an analysis of Maggie’ EPA claim. Nevertheless, here are a few reminders about how to avoid such claims.

You may have noticed that the employees’ job titles were different in this case. However, job titles won’t carry the day for an employer—what matters are the employee’s actual job duties and responsibilities.

So the question becomes, are the duties of an administrator and director of nursing and those of an executive director at a single location equal or closely comparable? We can’t tell at this point in the case because the facts on that issue weren’t before the court.

What will matter in the end is how the court or a jury views the issue. If the employees’ duties and responsibilities are found to be equal or closely comparable, the employer will have to provide a valid explanation for the difference that isn’t based on gender.
Martin J. Regimbal, a shareholder of The Kullman Firm, and an editor of Mississippi Employment Law Letter, can be reached at 662-244-8824 or