Constructive Discharge

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 What is Constructive Discharge?

Constructive discharge refers to an employee resigning from their job after experiencing such unbearable working conditions that they could not remain at their job any longer. These negative working conditions are such that no reasonable person would or could continue working under such circumstances, and resignation from such working conditions are treated as a dismissal by the employer. An employee who has been constructively discharged may be able to file a complaint against their employer, as if the employer had wrongfully terminated the employee.

Is Constructive Discharge the Same as Wrongful Termination?

Wrongful termination is also referred to as wrongful discharge, and describes a legal circumstance in which an employee’s termination breaches one or more of the terms outlined in their employment contract.

In order for termination to be considered wrongful, it must be illegal. An obvious example of a wrongful termination would be if the employer fires an employee based on the employee’s race, as opposed to their job performance.

Importantly, state laws vary regarding employer and employee relationships. However, most states have enacted at-will employment, with the intention of reducing wrongful termination. Under at-will employment standards, employers may terminate an employee for any reason, so long as that reason is not an illegal one.

Thus, as long as the reason for termination is not illegal, an employer doesn’t even have to give a reason for the employee’s termination. Essentially, an employee cannot be wrongfully terminated if they were terminated for no reason at all.

What are Some Common Conditions that Could Cause Constructive Discharge?

As previously mentioned, in order to have constructive discharge the working conditions of an employee must be so unbearable that no reasonable person could continue working under those conditions. Some of the most common examples of conditions that could cause constructive discharge include:

  • Bullying in the workplace, by one or more coworkers, or supervisors;
  • Illegal discrimination, such as discriminated based on race, sex, religion, etc.;
  • Sexual harassment;
  • Hostile work environment;
  • Dramatic and intolerable changes made to the employee’s working hours, pay, or responsibilities;
  • Retaliation when an employee has issued a valid complaint, reported some wrongdoing, or acted as a whistleblower;
  • Intolerable humiliation of the employee; and
  • Breach of terms of employment contract, with said breach creating intolerable conditions.

Intolerable conditions could be created by other employees, who are in a similar situation as the employee claiming constructive discharge. The conditions need not be created solely by a supervisor or other authority figure within the company. Instead, the failure of the employer to correct or stop the condition could be sufficient to create liability for the constructive discharge.

How Could an Employee Prove a Constructive Discharge Claim?

The Equal Employment Opportunity Commission, or “EEOC” for short, is an administrative agency that exists enforce the various anti-discrimination laws passed by the federal government.

Some such laws include the Civil Rights Act, as well as the Age Discrimination in Employment Act. In order to prove wrongful termination or constructive termination, the EEOC requires that three main criteria must be met:

  • Discriminatory or retaliatory behavior in the workplace must exist against the employee;
  • It must be shown that such behavior was so intolerable to any reasonable person; and
  • It must be shown that the employee was forced to resign or retire directly because of such behavior.

Some states may require other considerations, such as a specific number of incidents that occurred as well as their severity. Another potentially relevant fact is the amount of time between the intolerable behavior and the employee’s resignation.

An example of this would be if an employee is being harassed by another employee, and the employer immediately terminates the harassing employee in an effort to improve the first employee’s workplace.

That employee continues their employment for a significant amount of time without any other incidents, and then resigns. It is unlikely that their resignation is due to the harassment of the terminated employee.

If an employee is filing a lawsuit because of constructive discharge, then they will need to provide and submit evidence supporting their claim. Such evidence could include:

  • Direct evidence, such as a verbal or written statement, letters, emails, voicemails, etc.; and/or
  • Circumstantial evidence, such as examples of actions on the part of the employer before or after the firing.

What Remedies are Available to an Employee Who Has Been Constructively Discharged?

In order to receive any remedies for constructive discharge, the employee will generally need to file a complaint with the EEOC before taking any legal action. The EEOC will likely conduct an investigation into the workplace, its practices, and management.

If the investigation’s findings are not adequate, or the EEOC’s provisions are lacking, then the terminated employee may wish to file a civil lawsuit against their former employer. They can do so after the EEOC has finished their investigation and the employee is given a “Right to Sue” letter.

If successful in their claim for constructive discharge, then they could be entitled to the following remedies:

  • Reinstatement to their former position, including former pay rate and benefits;
  • Removal of the employee or supervisor who has responsible for the intolerable conditions;
  • A monetary damages award;
  • Reimbursement of lost wages; and/or
  • Reimbursement of attorney’s fees.

Do I Need an Attorney for Constructive Discharge?

If you feel you have been constructively discharged from your job, you should consult with a skilled and knowledgeable wrongful termination attorney. An experienced employment law attorney can help assess your claim and determine whether you have legal standing.

Additionally, an attorney can assist you in gathering evidence to support your claim. Finally, they can help you file your claim against your employer and represent you in court, if necessary.


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