Constructive Discharge

If you feel that you had to quit your job, because your employer made your work environment intolerable in violation of a law, 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 discrimination law, the employment contract or public policy by singling out and targeting the employee in some way.

What is the motivation behind constructive discharge? Sometimes employers try to effect a constructive termination in an attempt to have the employee quit, rather than having to fire them. But sometimes colleagues or supervisors bully an employee so often, that the work environment becomes intolerable.

Constructive dismissal factors

Triggers

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.

It’s important to note that a constructive discharge case can only be brought, if the reason for the resignation is a factor that violates a federal employment law or a local law. For example, simple bullying may be unfair, but it is not unlawful. Unfortunately civility is not legally required at work. However, bullying a person through unlawful discrimination (race, sex, origin, etc.) is absolutely against the law and can be a basis of a constructive discharge case.

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:

• A 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.

Resignation

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.

How to prove constructive discharge claims?

There are times, when we think we are treated unfairly. In fact, the JOLTS reports regularly show 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.

There are a few things to keep in mind when thinking about the conditions of the resignation and how to prove constructive dismissal.

First of all, it’s not enough that a disgruntled ex-employee thinks that his/her work conditions were intolerable. The court will decide based on the “reasonable person standard“, which takes subjectivity out of the equation.

Secondly, it’s also easy to see, that many “triggers” might actually be valid business decisions brought by the company.

The burden of proof in constructive dismissal cases is with the resigned employee. For the claim to be legally actionable, the employee has to prove 2 things.

Proving intolerable working conditions

The employee needs to prove that the working environment was so intolerable, that a reasonable person had no choice but to quit.

According to the reasonable person standard, a competent and reasonable employee is normally motivated to remain on the job. Only conditions that are egregious and extraordinary can affect the work environment to such an extent, that a person would feel forced to resign.

The triggers described above need to be documented, showing that the victim was subjected to illegal treatment and/or working conditions. Emails, notes and witnesses are usually used to prove this.

Presenting evidence of emotional distress is also used to help prove adverse working conditions. This could mean showing medical records, drug prescriptions or getting a testimony from a therapist.

Employer was aware of the intolerable working conditions

It is important that an employee is generally expected to inform the employer of the intolerable working conditions. If the employer had no knowledge of the conditions, the constructive discharge claim is not valid, as the employer’s actions could not have been deliberate.

If the employer had knowledge of the adverse working conditions and did nothing to correct the situation, or even deliberately created such an environment to force the resignation, the constructive discharge claim may be valid.

Proving constructive dismissal is hard

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

There 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:

• After making a whistleblower complaint, an employee is subjected to a hostile environment in retaliation.
• 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, reporting a safety concern, etc.

Constructive discharge example verdicts and settlements

To further illustrate what valid constructive dismissal claims are like, we have gathered a few real life constructive discharge cases that were either settled or decided in court.

Keep in mind that all cases are different. These constructive dismissal examples should give you a good idea of what a valid claim looks like, but the general descriptions do not tell the whole story. Details are omitted for brevity, but it is often the details that can make a winning case.

• Karen Crisco v Medical Clinic: With the assistance of the EEOC, the woman reached a $35,000 constructive discharge settlement with her previous employer. She was a nurse with the company for 3 years. She was in a relationship with a Muslim man, and she converted to Islam as well. She wore a religious head scarf for 1 day, but her employer advised her to stop wearing it, since it had frightened patients of the clinic. She was thus constructively discharged, since the employer did not accommodate her religious beliefs. (source)
• Diana Duncan v GM: The woman worked as a trainee at a General Motors plant. She alleged that she was forced to resign, because of the actions of her immediate supervisor. The supervisor wanted to have a relationship with her, but she refused. Afterwards, he became hostile and more critical of her work. She sued the company and was awarded $1 million by a jury, but the decision was reversed by the court of appeals. She settled the case for $80,000. (source 1 and source 2)
• Peggy Jo Taylor v Ethan Allen Inc: Peggy Jo Taylor was the General Manager of a Thousand Oaks store in CA. The store was rolling out a new computer system, but it wasn’t performing well. The manager complained to her supervisors, who didn’t respond adequately. She escalated her complaint by contacting corporate headquarters. Afterwards, her supervisors retaliated by placing her under scrutiny and eventually convincing corporate headquarters to demote her. The manager went on sick leave caused by stress, and resigned 9 months later. She sued the company for constructive discharge and defamation. Her constructive discharge case was NOT strong and was nonsuit. However, she was awarded $150,000 for defamation.
  This example was included to demonstrate that unfair treatment does not constitute constructive discharge, but other remedies may be available. (source)

If you believe that your resignation was (or will be) brought on by the willful illegal actions of your employer, you may have a constructive discharge case.

Read this guide on filing a wrongful termination claim to find out what to do next.