Constructive Discharge — When “I Quit” Means “I Was Fired”

Constructive DischargeConstructive discharge is the legal term for when an employee is compelled to quit due to intolerable working conditions. Constructive discharge is not grounds for a lawsuit in and of itself. Rather, it allows an employee to sue for wrongful termination as part of a lawsuit based on some other employment law, such as a workplace discrimination lawsuit. This is because an employee who has been constructively discharged has really just been terminated, and terminations are not illegal unless they are in violation of some other law — or an employment contract.

Constructive Discharge — How to Prove It

To prove a constructive discharge claim, an employee must show that he was subjected to intolerable working conditions which would compel a reasonable employee to quit. This is a fairly difficult standard to meet, so if at all possible, an employee should try to wait until the employer terminates him rather than succumbing to its attempts to make him quit.

Some cases of constructive discharge are easier to prove than others. Cases in which an employee is subjected to threats of violence or unwanted sexual contact make for very strong constructive discharge claims. Any reasonable employee would immediately quit when his or her personal safety is put at risk by another employee’s unlawful conduct.

More commonly, constructive discharge cases will be less obvious and will involve a recent pattern of changes to the employee’s working conditions. The employee may be consistently assigned the most undesirable shifts or job duties. He may be subjected to unfair discipline or constant ridicule by the employer. To prove that these types of actions caused the employee to quit, they need to have been a fairly recent development. If the employer always treated the employee poorly, and the employee tolerated this behavior for years, it would be difficult to claim that this same conduct suddenly compelled the employee to resign.

In the workplace discrimination context, actions which form the basis for a hostile work environment claim could also be used to prove constructive discharge. If the employee is subjected to abuse by co-workers (as opposed to supervisors), he needs to avail himself of any procedures for reporting such conduct to his employer. Failing to do so, except in the most extreme cases, could preclude a finding of constructive discharge (or even a finding of discrimination), as the employer was not afforded the opportunity to take corrective action. If the employee reports the abusive conduct and the employer allows it to continue, this strengthens the constructive discharge claim — now the employer is directly responsible for the behavior which compelled the employee to quit.

Constructive Discharge — Don’t Jump the Gun

Employees who have been subjected to workplace discrimination sometimes jump the gun and quit in anticipation of working conditions getting worse. This is a mistake. An employee’s fear (whether justified or not) that his working conditions will soon become intolerable is not sufficient to support a constructive discharge claim. The working conditions must already be intolerable at the time the employee quit. A constructive discharge claim cannot be based on speculation that at some point in the future working conditions might become intolerable.

Constructive Discharge — The Importance of Context

Whether a change in working conditions amounts to constructive discharge will often depend on the context in which the change takes place. If an employee’s wages are cut, this may be due to the employer trying to force the employee to quit or it may be the result of cutbacks necessitated by an economic downturn. If other employees outside of the employee’s protected class are also subjected to a pay cut, it is unlikely that this action will be considered a constructive discharge.

If an employee’s boss is a monstrous tyrant, but he always has been, and acts like such a tyrant to all employees, his continued monstrous behavior will likely not be grounds for a constructive discharge claim.

However, if an employee’s wages are unjustifiably cut or he is subjected to tyrannical behavior beyond that which other employees outside his protected class experience, this would support a finding of constructive discharge. This is especially true in the context of other discriminatory conduct by the employer.

Whether or not an employee’s working conditions are so intolerable that a reasonable employee in his position would feel compelled to quit is an issue of fact for a jury to decide. However, in cases where it is clear that no reasonable jury could reach such a finding, a judge may eliminate an employee’s constructive discharge claim on a summary judgment motion.

Constructive Discharge — The “Quit or be Fired” Ultimatum

Employers know it is far more difficult for an employee to bring a wrongful termination claim based on constructive discharge than it is based on an actual firing. Often, they will offer an employee the “opportunity” to quit instead of being fired. Sometimes, this “opportunity” will be coupled with an explicit or implicit threat that if the employee chooses to be fired, the employer will speak negatively of the employee to prospective future employers.

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If you have been the subject of workplace discrimination and are faced with the “quit or be fired” ultimatum (usually requiring an immediate decision), your discrimination case would be better served by you forcing the employer to fire you. If you can avoid having to prove a constructive discharge claim, you should.

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