Constructive Discharge
Constructive discharge is an indirect dismissal where an employer frustrates their employee until they have no choice but to resign. The law may consider it an unfair termination if an employer makes work conditions intolerable.
What Is Constructive Discharge?
Constructive discharge (also called constructive dismissal or constructive termination) is a term for an involuntary resignation. Some employers may use this tactic to force workers to resign when they need to downsize but do not want to pay termination benefits.
It typically happens through a pattern of behavior that consistently undermines an employee. Although the worker submits a resignation letter, they do so against their will. They only choose to quit because the employer makes it unbearable to continue in the same position.
Constructive discharge can be considered wrongful termination, and a guilty employer can be penalized for their actions. The victimized employee may receive unemployment benefits for constructive discharge.
When does constructive discharge occur?
Not every situation that causes employee dissatisfaction qualifies as unlawful constructive discharge. For constructive discharge to occur, the employer must knowingly or intentionally make working conditions too unfavorable to bear.
For constructive discharge to occur, the employee must have resigned because of the following situations:
- Intolerable working conditions — Hostile or abusive working conditions or detrimental change to job duties
- Problematic employer conduct — Sexual or other types of harassment
- Reasonable person standard — Working conditions so hostile that any reasonable person in the employee’s position would resign
- Forced resignation — Employer’s actions coerce an employee to resign
If an employee feels that these factors apply to them, they may file a wrongful termination claim.
Is Constructive Discharge Illegal?
Constructive discharge is illegal if the underlying cause of resignation is illegal. The employer must have violated a public policy or the terms of the employment contract.
Discrimination, harassment, and similar actions are considered constructive discharge, meaning you may have a case.
Sometimes, however, an employee may feel compelled to resign in some situations that are not considered illegal. This situation is called a fair constructive discharge.
Examples of fair constructive discharge are:
- A change in duties that the employer applies to all employees
- An increase in mandatory overtime in a state where mandatory overtime is legal
- A demotion, reduction in pay, delay in advancement, or denial of a raise based on unrealized expectations
- Resignation offered as an option to termination for cause
Understanding state and local employment termination laws, policies, and employer guidelines can help you know when you have a case.
How to Prove Constructive Discharge
There is no federal constructive discharge law. Employees must refer to their State regulations to learn the requirements for filing a claim. The complainant must demonstrate that their resignation was, in fact, an unlawful dismissal.
Before filing a constructive dismissal claim, you must gather evidence for your case. This could include correspondence showing the unfair actions an employer took and your response, or witness statements by fellow employees.
If your salary was affected, you could also include pay stubs showing a sudden or unfair pay reduction.
In general, you’re recommended to give any evidence that shows you had no other choice but to resign, and proof of the adverse consequences of the unfair termination. Requirements for evidence vary from state to state.
California's constructive discharge termination guidelines, for example, require a strict reasonable person standard. In Arizona, you must provide written notice to the employer and wait 15 days for your employer to address it before resigning.
What are some constructive discharge examples?
Constructive discharge types depend on the underlying cause of resignation. Examples of illegal actions that qualify as wrongful dismissal include the following:
- Harassment. You face constant bullying, intimidation, or outright sexual/physical harassment, and the employer does nothing to resolve the situation.
- Discrimination. The employer treats you differently because of your age, race, gender, pregnancy status, national origin, religion, or disability.
- Demotion. You suffer a pay cut or demotion without a valid reason.
- Retaliation. A manager or supervisor treats you negatively for engaging in a protected workplace activity, such as giving feedback on a survey.
- Disregard. Management does not address your complaint about a workplace incident, behavior, or atmosphere.
- Lack of accommodations. An employer does not provide what a disabled employee requests to do their job well and comfortably.
If you are unsure whether you are the victim of constructive discharge, consult an attorney for legal advice.
Is it difficult to prove constructive discharge?
Proving constructive discharge takes a lot of effort because the legal burden of proof rests with the employee. The court does not help you to argue your case. Additionally, you must prove that the conditions were so bad that you had no other option but to resign.
Merely disliking your employer or your job does not count. Also, one-time actions rarely qualify as constructive dismissal. However, in extreme cases, even a single act of severe harassment is unlawful.
Despite the many hurdles, you can successfully file a claim, provided you have the necessary documentation.
The process typically starts with the employee reporting the unfavorable condition to the employer. If the employer does not address the issue, you may proceed to file a constructive discharge claim. You can file the claim before or after resigning from your position.
How to File a Constructive Discharge Claim
You typically file your claim with the Equal Employment Opportunity Commission (EEOC). You should perform due diligence to determine whether your situation qualifies as constructive termination. Follow the steps below:
- Seek legal advice - Your attorney can evaluate whether you have a case.
- Document everything - Keep records of the conditions and correspondences.
- Report to HR - You will need proof that the employer knew about the situation.
- File a complaint with EEOC.
Federal employees must file the claim within 45 days, while private sector employees have up to 180 days to file.
If you win, you may receive compensation in terms of back pay, front pay, attorney fees, and emotional damages. In some cases, the judge may order that you be reinstated to your position.
Is constructive discharge a state or federal claim?
Constructive discharge is a legal doctrine that guides wrongful termination cases. It is neither a federal nor a state law. However, the claim can either be federal or state, depending on the existing labor laws you cite.
For example, you may file a federal claim based on a violation of Title VII of the Civil Rights Act of 1964. Or an employer may be in breach of your State’s labor laws.
Helpful Resources:
US DOL - Constructive Discharge
SHRM - What Do You Do When an Employee Resigns, Then Asks to Stay?
Constructive discharge is an indirect dismissal where an employer frustrates their employee until they have no choice but to resign. The law may consider it an unfair termination if an employer makes work conditions intolerable.
What Is Constructive Discharge?
Constructive discharge (also called constructive dismissal or constructive termination) is a term for an involuntary resignation. Some employers may use this tactic to force workers to resign when they need to downsize but do not want to pay termination benefits.
It typically happens through a pattern of behavior that consistently undermines an employee. Although the worker submits a resignation letter, they do so against their will. They only choose to quit because the employer makes it unbearable to continue in the same position.
Constructive discharge can be considered wrongful termination, and a guilty employer can be penalized for their actions. The victimized employee may receive unemployment benefits for constructive discharge.
When does constructive discharge occur?
Not every situation that causes employee dissatisfaction qualifies as unlawful constructive discharge. For constructive discharge to occur, the employer must knowingly or intentionally make working conditions too unfavorable to bear.
For constructive discharge to occur, the employee must have resigned because of the following situations:
- Intolerable working conditions — Hostile or abusive working conditions or detrimental change to job duties
- Problematic employer conduct — Sexual or other types of harassment
- Reasonable person standard — Working conditions so hostile that any reasonable person in the employee’s position would resign
- Forced resignation — Employer’s actions coerce an employee to resign
If an employee feels that these factors apply to them, they may file a wrongful termination claim.
Is Constructive Discharge Illegal?
Constructive discharge is illegal if the underlying cause of resignation is illegal. The employer must have violated a public policy or the terms of the employment contract.
Discrimination, harassment, and similar actions are considered constructive discharge, meaning you may have a case.
Sometimes, however, an employee may feel compelled to resign in some situations that are not considered illegal. This situation is called a fair constructive discharge.
Examples of fair constructive discharge are:
- A change in duties that the employer applies to all employees
- An increase in mandatory overtime in a state where mandatory overtime is legal
- A demotion, reduction in pay, delay in advancement, or denial of a raise based on unrealized expectations
- Resignation offered as an option to termination for cause
Understanding state and local employment termination laws, policies, and employer guidelines can help you know when you have a case.
How to Prove Constructive Discharge
There is no federal constructive discharge law. Employees must refer to their State regulations to learn the requirements for filing a claim. The complainant must demonstrate that their resignation was, in fact, an unlawful dismissal.
Before filing a constructive dismissal claim, you must gather evidence for your case. This could include correspondence showing the unfair actions an employer took and your response, or witness statements by fellow employees.
If your salary was affected, you could also include pay stubs showing a sudden or unfair pay reduction.
In general, you’re recommended to give any evidence that shows you had no other choice but to resign, and proof of the adverse consequences of the unfair termination. Requirements for evidence vary from state to state.
California's constructive discharge termination guidelines, for example, require a strict reasonable person standard. In Arizona, you must provide written notice to the employer and wait 15 days for your employer to address it before resigning.
What are some constructive discharge examples?
Constructive discharge types depend on the underlying cause of resignation. Examples of illegal actions that qualify as wrongful dismissal include the following:
- Harassment. You face constant bullying, intimidation, or outright sexual/physical harassment, and the employer does nothing to resolve the situation.
- Discrimination. The employer treats you differently because of your age, race, gender, pregnancy status, national origin, religion, or disability.
- Demotion. You suffer a pay cut or demotion without a valid reason.
- Retaliation. A manager or supervisor treats you negatively for engaging in a protected workplace activity, such as giving feedback on a survey.
- Disregard. Management does not address your complaint about a workplace incident, behavior, or atmosphere.
- Lack of accommodations. An employer does not provide what a disabled employee requests to do their job well and comfortably.
If you are unsure whether you are the victim of constructive discharge, consult an attorney for legal advice.
Is it difficult to prove constructive discharge?
Proving constructive discharge takes a lot of effort because the legal burden of proof rests with the employee. The court does not help you to argue your case. Additionally, you must prove that the conditions were so bad that you had no other option but to resign.
Merely disliking your employer or your job does not count. Also, one-time actions rarely qualify as constructive dismissal. However, in extreme cases, even a single act of severe harassment is unlawful.
Despite the many hurdles, you can successfully file a claim, provided you have the necessary documentation.
The process typically starts with the employee reporting the unfavorable condition to the employer. If the employer does not address the issue, you may proceed to file a constructive discharge claim. You can file the claim before or after resigning from your position.
How to File a Constructive Discharge Claim
You typically file your claim with the Equal Employment Opportunity Commission (EEOC). You should perform due diligence to determine whether your situation qualifies as constructive termination. Follow the steps below:
- Seek legal advice - Your attorney can evaluate whether you have a case.
- Document everything - Keep records of the conditions and correspondences.
- Report to HR - You will need proof that the employer knew about the situation.
- File a complaint with EEOC.
Federal employees must file the claim within 45 days, while private sector employees have up to 180 days to file.
If you win, you may receive compensation in terms of back pay, front pay, attorney fees, and emotional damages. In some cases, the judge may order that you be reinstated to your position.
Is constructive discharge a state or federal claim?
Constructive discharge is a legal doctrine that guides wrongful termination cases. It is neither a federal nor a state law. However, the claim can either be federal or state, depending on the existing labor laws you cite.
For example, you may file a federal claim based on a violation of Title VII of the Civil Rights Act of 1964. Or an employer may be in breach of your State’s labor laws.
Helpful Resources:
US DOL - Constructive Discharge
SHRM - What Do You Do When an Employee Resigns, Then Asks to Stay?