When an employee leaves their employer, this is what’s known as separation of employment. Many cases of separation from employment are straightforward, as when an employee simply resigns, or is fired for cause. Constructive discharge is not quite so clear-cut. 

In this type of separation, a hostile work environment makes working conditions so bad for an employee that they are forced to quit. In this type of situation, usually, the employer is trying to make the employee quit. Perhaps they pay them differently than other employees, or discipline them constantly without good reason. In essence, their job is so unperformable that they are “essentially discharged” (or fired). 

An employee who is forced out may also have a claim for wrongful termination, in which the employer’s reasons for firing or mistreating the employee are illegal.

What are Some Other Types of Separation from Employment?

An employee may choose to leave a job on their own. This may not necessarily be because their work environment was hostile. People leave jobs for many different reasons. This is called voluntary termination.

Also, as discussed above, there may be a case for wrongful termination, when an employee is fired not because they did something wrong, but for another, illegal reason. This might occur when an employer fires an employee based on their race of disability. We will discuss illegal reasons for firing more in the next section. 

What Laws Protect Employees from Constructive Discharge?

When the employee tries to make a claim for constructive discharge, they usually do not make the claim simply on the basis of their employer treating them poorly. Usually, the employee makes a claim that they were treated improperly according to a particular law. 

An employee might claim that they were the victim of harassment or discrimination, but they still need to apply the law that governs their particular claim. These are some examples of laws under which an employee might make their constructive discharge claim:

  • American with Disabilities Act of 1990 (ADA): Persons who are discriminated against or harassed because of a disability that is known to their employer may file a claim under this law. This might be a physical, intellectual or other kind of disability.
  • Equal Pay Act of 1963: A woman who is paid less than her male colleagues (who do the same work) may file a claim under this law.
  • Family and Medical Leave Act of 1993 (FMLA): If an employee is fired or mistreated for taking leave due to pregnancy, care of a newborn, their own illness, or the illness of an immediate family member, they may file a claim under this law. The FMLA provides for twelve weeks of unpaid leave.
  • Age Discrimination in Employment Act of 1967 (ADEA): If the employee is forced out by a hostile working environment, and they believe it is based on their age, they may file a claim under this law.
  • Title VII of the Civil Rights Act of 1964 (Title VII): When a person is forced out of their job, and they believe it is due to discrimination, they may file under this law. The discrimination may be based on race, color, sex, national origin, and religion.
  • National Labor Relations Act: Employees who were forced out for attempts to unionize, or other union activity, may file under this act.
  • State Employment Laws: Each state has its own laws regarding employment, which should be consulted in a constructive discharge case.

An employee may also file a claim based on retaliation, which occurs when they are forced out for complaining about poor working conditions. Another type of claim an employee may make is for breach of contract, which could occur when the employment contract between employer and employee contains a provision stating that employees will only be let go for good cause.

What Must an Employee Prove in Order to Win Their Constructive Discharge Case?

The Equal Employment Opportunity Commission (EEOC) has established a three-part test for determining whether there has been a constructive discharge. The elements are as follows:

  1. Would a reasonable person, under the same circumstances as the employee, have found the working environment hostile?
  2. Was the environment created by an employer who was practicing discrimination?
  3. The hostile working environment led directly to the employee resigning (involuntarily).

In a case for constructive discharge, the burden of proof is on the employee to show that they were constructively discharged.

Do I Need to Talk to a Lawyer If I Have Faced Constructive Discharge?

If you believe you have been the victim of a constructive discharge, you should contact an employment lawyer in your area. The lawyer can discuss your case with you, and advise you as to whether you are likely to have a successful claim. If so, the attorney can represent you in the claim against your former employer.