Constructive discharge occurs when an employee resigns after experiencing unbearable working conditions that caused their resignation.
The negative working conditions must be such that a reasonable person would not continue working and thus the resignation is treated as a dismissal by the employer.
An employee who has been constructively discharged may be able to file a complaint against the employer as if the employer had wrongfully terminated their employment.
Constructive discharge can be difficult to prove but is similar to proving wrongful termination and workplace discrimination claims. The Equal Employment Opportunity Commission or EEOC provides three main factors in determining whether a constructive discharge occurred:
- The existence of discriminatory or retaliatory behavior against the employee in the workplace.
- Whether such behavior was so intolerable to a reasonable person.
- Whether the employee was forced to resign or retire because of such behavior.
Depending on the state, there may be other considerations such as how many incidents occurred and their severity. Time between the intolerable behavior and the resignation is also relevant.
For example, employee A is harassed by employee B and the employer immediately terminates B to improve A’s workplace. A continues to work for a significant amount of time without any other incidents and then resigns. It is unlikely that A’s resignation is due to B’s harassment.
The following are examples of working conditions that can cause employees to claim a constructive discharge:
- Bullying in the workplace either by one or more co-workers or supervisors.
- Illegal discrimination such as discrimination based on race, sex, ethnicity, religion, or place of origin.
- Sexual harassment.
- Hostile work environment.
- Dramatic and intolerable changes to the employees hours, pay or responsibilities.
- Retaliation after an employee has made a valid complaint, reported some wrongdoing, or engaged in whistleblowing on the employer.
- Intolerable humiliation of the employee.
- The terms of the employment contract were breached and such breaches created such intolerable conditions.
It is important to note that intolerable conditions can be created by other employees similarly situated to the employee making a claim of constructive discharge.
It is not necessary that the conditions were created solely by a supervisor or authority figure in the workplace; the failure of the employer to correct or stop the condition may create the liability for the discharge.
If an employee is successful in a claim for constructive discharge, they may entitled to the following relief:
- Reinstatement of their former position
- Removal of another employee or supervisor responsible for the intolerable conditions
- Money damages
- Lost wages
- Attorneys fees
Constructive discharge claims are complicated and difficult to prove. If you are suffering intolerable working conditions, contact a local employment lawyer before resigning to ensure the best way to handle the situation so that your future claim is more successful.
Different states have varying factors and elements. Consulting an employment lawyer can help you understand what is required and how to prove your claim. A lawyer can prepare your case and represent you in settlement negotiations and in court.