What is constructive discharge?

One of the fundamental requirements of a wrongful discharge claim is that the employee was discharged—that is, fired. This is easy to show when the employee is expressly fired, but what is the case when the employee resigns? To sue an employer for wrongful discharge, the employee does not always have to be actually fired. When working conditions become so intolerable that the employee was forced to resign, the employee can argue that he was constructively discharged.

Constructive discharge is defined as an employee’s reasonable decision to resign because of unendurable working conditions. So, the employee does not need to have been fired to bring a wrongful discharge claim. However, he must have resigned; he cannot continue to work and claim wrongful discharge based on a negative change in working conditions.

To succeed on a constructive discharge claim, an employee must show that the working conditions were objectively intolerable, and that the employee’s resignation was an objectively reasonable response.

Proving objectively intolerable working conditions requires an unlawful act—discrimination or retaliation—plus some aggravating circumstance. Aggravating circumstances include demotion, reduction in salary, reduction in job responsibilities, reassignment to menial or degrading work, reassignment to a younger or less experienced supervisor, badgering, harassment, or humiliation by the employer designed to encourage resignation, or offer of early retirement or continued less favorable employment.

Discrimination alone—without aggravating circumstances—is not considered so intolerable that an employee is forced to quit. Similarly, aggravating circumstances alone—without discrimination—isn’t that intolerable either. For example, if an employer discriminates against an employee based on religion in violation of Tittle VII and nothing more, and the employee resigns, the employee cannot bring a claim for wrongful discharge because there is no aggravating circumstance. Further, if an employer demotes an employee or reduces his salary and nothing more, and the employee resigns, the employee cannot bring a claim for wrongful discharge because there is no unlawful act. In both case there is no constructive discharge.

The employee’s resignation must also be a reasonable response to the working conditions. For example, an employee will more easily prove constructive discharge if he sought alternative ways to resolve the problem before resigning. This may include notifying the employer of the intolerable working conditions or following the company’s internal grievance procedure if one exists. If the employee fails to seek an alternative resolution or reasonably respond, he will not be able to show that he was constructively discharged.