If you feel that you had to quit your job, because your employer made your work environment intolerable, you might have a constructive discharge (also termed constructive dismissal, constructive termination) case against your employer.

Constructive discharge occurs, when an employee resigns due to the employer creating such a hostile work environment, in which the employee has no choice, but to quit. In effect, this means that the resignation was not truly the will of the employee, he/she was forced to quit. The employer violates the employment contract or public policy by singling out and targeting the employee in some way.

What is the motivation behind constructive discharge? Simple. Employers try to effect a constructive termination in an attempt to have the employee quit, rather than having to fire them.

Constructive dismissal factors


There are some typical events, which might trigger a constructive termination. These triggers cause a breach of contract (be the contract implied or specific), or a loss of mutual trust between the employee/employer.

  • Bullying by the employer
    • verbal/physical abuse
    • harrasement
    • criticism in front of other employees
    • ignoring employee complaints
    • not giving a benefit that every other employee gets
    • work overload (forcing to do 2 peoples jobs)
    • overpenalizing a mistake
  • Unilateral contract changes imposed by the employer
    • refusal of holiday leave
    • drastic changes to work hours, location, duties
    • lowering pay
    • demotion
    • delaying payment of salary
    • withdrawal of company car needed to fulfill job expectations

And any other cause where the situation becomes so intolerable, that the employee has no choice but to resign.

In general, the court expects employees to inform the employer of the adverse conditions, so that they have a chance to correct the situation. If the employer is not informed, and does not know about the conditions, the case for constructive dismissal is weak.

Timing of the triggers

The timing of the things an employer might do to have the employee resign is important in constructive discharge cases.

Courts differentiate between:

  • single trigger so serious, it immediately causes the employee to resign. An example would be committing a crime against the employee, or asking the employee to commit a crime.
  • A serious trigger that acts as a last straw following a string of other breaches.
  • A continuing pattern of regularly occurring triggers related in nature.


The employee is expected to resign fairly quickly after the final trigger (last straw), for a constructive discharge case to be valid.

The employee may resign without notice, but may also give notice, so that he/she gets pay and salary during the resignation period.

Constructive discharge claims are difficult to prove

There are times, when we think we are treated unfairly. In fact, the October 2016 JOLTS report showed that there are 2x as many people quitting their jobs, as there are being laid off. It’s a fair bet to suppose that those people were not satisfied with their job circumstances.

It’s not enough, that an ex-employee thinks that his/her work conditions were intolerable. The court will decide based on the “reasonable person standard“.

It’s also easy to see, that many “triggers” might actually be valid business decisions.

For a constructive termination claim to be legally actionable, the employer has to prove that:

  1. The working environment was so intolerable, that a reasonable person had no choice but to quit.
  2. The employer deliberately created such an environment to force the resignation, or had knowledge of the adverse working conditions.
  3. The employer committed unlawful conduct, or breached an employment contract.

In general, constructive discharge claims are difficult to prove. Because of the at-will employment relationship prevalent in the US, the law doesn’t require employers to treat employees “fairly”. They are merely required to not act in a discriminatory fashion, and not break any laws or employment contracts.

Truly illegal hostile work environments are rare.

Real life constructive discharge scenarios

constructive-discharge-termination-claimThere are a few situations, in which the court will most likely rule, that constructive termination occurred.

Here are some examples of constructive discharge situations, where the claim would be justifiable:

  • An employee is subjected to a hostile environment, after making a whistleblower complaint.
  • An employee is sexually harassed.
  • An employee receives consistent ill treatment, due to discrimination (race, sex, age, religion, disability, etc.)
  • An employee’s complaint of the adverse work environment is responded to ineffectively, and the situation becomes even more hostile.
  • An employee is retaliated against after some event, for example, filing a worker’s compensation claim,  seeking reasonable accommodations for a disability, took leave under FMLA, etc.