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Should I Stay or Should I Go? Resign or Wait For Termination

Posted by Kira Fonteneau | Sep 25, 2018

Most people who call our office are at their wit's end.  They think they a termination is coming, they are being harassed, or worse; their employers are making them choose between termination or resigning. Employees who feel that they are victims of discrimination often wonder what they should do.  The answer depends on the facts of each case, but as a general rule, when it comes to pursuing a legal claim, it is often best to stay put.

If you feel that you are about to be fired

Most companies do not fire employees out of the blue.  Usually, there are signs that the employer is taking action.  If you think your employer is building a case to fire you, take action.  First, get your résumé together and begin to get ready for your future at a different company.  Next, try to determine if you are being singled out for an illegal reason. Are people who are different from you getting less punishment for the same infractions? If you suspect that your employer is targeting you because of your race, sex, pregnancy, religion, disability, taking Family and Medical Leave, or use of workers' compensation benefits, it is important to gather your thoughts and evidence of the improper behavior.  You may have emails, voice recordings, videos or other evidence that will help you if you decide to file a lawsuit. Once you gather evidence and want to know if it proves discrimination, call our attorneys to get a consultation to find out if you have what you need.

If you suspect discrimination, report it

If you suspect that your employer is treating you differently because of your race, sex, pregnancy, religion, disability, or because you took FMLA, you must report it to management or Human Resources, even if you think it won't do any good.    Making the complaint is the first step to ensuring that you preserve your claims of discrimination.  It also gives your employer an opportunity to do the right thing.  If you do not report discrimination or fail to tell your employer that you think the discrimination was based on your race or sex or other protected category, you may be waiving your claims.   Even if you think that you do not want to play the race, sex or disability card, it is important that you do and preferably in writing.  This is also a good time to discuss your concerns with an attorney who can help you lay out the important facts.

If your employer gives you the option: Termination or resign

In general, it is not a good idea to resign to avoid termination.  Many people feel as though it will look bad if they have a termination in their employment history.  While that may be true, there is no practical benefit to resigning and it could mean that you lose your right to collect unemployment benefits. Most large employers have policies preventing them from sharing the details of your termination.  If you later file for unemployment or claim that you were discharged in your lawsuit, your employer will pull out your resignation letter and say that you chose to leave on your own.  This could ruin your claim.

If you feel that you are in danger

Although the general rule is that you should let the employer make the first move when it comes to termination if you feel that you are in danger and you have reported the illegal behavior to your employer, you may find it is in your best interest to resign.  Again, if you have time, it is best to contact an attorney first, but always place your physical and mental well-being ahead of a potential lawsuit.

Kira Fonteneau is an experienced attorney who can help guide you protect your rights.  If you feel like you are about to be fired and would like to discuss your next steps, contact us  or call us at (404) 383-5720.

About the Author

Kira Fonteneau



When you reach out to us, you will receive a complimentary consultation with one of our skilled Atlanta employment attorneys. During our initial consultation with you, we can help you to better understand your rights and will work with you to determine what course of action is in your best interest. We take great pride in providing assistance based on years of experience negotiating and litigating employment matters to protect employee interests. If you find yourself in need of dedicated legal representation, we are prepared to advocate on your behalf – our goal is always to protect employee victims of harassment, discrimination, and retaliation.