What Is Constructive Discharge?

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What is constructive discharge, and how does it differ from other forms of termination of employment? Constructive discharge occurs when an employee is forced to resign because the employer has made working conditions unbearable.

What Constitutes Constructive Discharge?

An employee is constructively discharged when they can no longer stay on the job because of a hostile work environment. This differs from a typical resignation, firing, or other types of separation of employment, as the employee is leaving because of intolerable working conditions.

Unbearable working conditions might include discrimination or harassment, mistreatment, or receiving a negative change in pay or job duties for reasons that are not work-related. An employer who harasses an employee in order to get them to resign as opposed to firing them, for example, is one attempting a constructive discharge.

Typically the harassment incorporates a violation of federal law prohibiting discrimination on the basis of age, national origin, pregnancy, race, religion, sex/gender, disability, or sexual harassment. 

Retaliation against whistleblowers that creates a hostile work environment and negligence by an employer who doesn’t take appropriate steps to accommodate a disabled employee can also be grounds for constructive discharge complaints.  

Employees can resign because of constructive discharge over one situation or due to a collection of incidents.

It helps the employee’s case if they resign soon after the infraction, as the statute of limitations on pursuing a complaint for private-sector employees is 180 days from the date they give notice, or 300 days if the state also has laws prohibiting the same discriminatory behavior. (Federal employees have a smaller window of 45 days in which to contact an agency Equal Employment Opportunity counselor.)

In 2016, in the case of Green v. Brennan, the U.S. Supreme Court ruled that the clock on this statute of limitations starts when the employee gives notice, not when the last discriminatory incident occurred.

State and local laws may differ, so check with your state department of labor for regulations regarding termination of employment that apply in your location.

Constructive Discharge and Legal Issues

There are legal issues surrounding constructive discharge, including wrongful termination, employment-at-will, and eligibility for unemployment benefits.

Wrongful Termination

If an employee feels he or she was forced to leave a job because the employer made the job so unbearable, he or she can file a wrongful termination suit against the former employer. In this case, being compelled to quit is legally similar to being unfairly discharged.

If you believe your termination was wrongful and you have been constructively discharged, or you have not been treated according to the law or company policy, you can get help.

The U.S. Department of Labor has information on each law that regulates employment and advice on where and how to file a claim. Your state department of labor will have similar guidance for laws that apply in your jurisdiction.

At-Will Employment

At-will employment means that you can quit at any time, as per the rules of the company. If you do quit without reason, you will not have a good enough claim against your employer to seek legal action.

In the case of constructive discharge, however, you would be able to apply for unemployment benefits and would have a case in seeking damages.

If it is found that you were mistreated, then according to the law you did not voluntarily quit—your employment was terminated.

Unemployment Benefits

Employees who voluntarily quit typically do not receive unemployment benefits, and also generally lose the right to sue the company for wrongful termination.

However, workers who lose their jobs as a result of constructive discharge may apply for and receive unemployment benefits, if they qualify, and retain the right to sue. This is because the resignation was not technically voluntary, and so can be considered a termination under the law. In this case, your employer may be able to appeal your claim.

If you are not sure whether you're eligible for unemployment benefits, check with your state unemployment office to determine your eligibility. If your claim is denied, you will be able to appeal and explain the circumstances of your termination.

How to File a Complaint

If you believe that your resignation counts as constructive discharge, your next step should be to file a complaint with the Equal Employment Opportunity Commission, and possibly to consult an employment lawyer.

Again, time is of the essence: depending on whether you work in the public or private sector, you might only have a matter of days to launch a complaint. For example, the statute of limitations in Green v. Brennan was 45 days, due to the fact that Green was a government employee.

Proving a Constructive Discharge Claim

The burden of proof lies with the employee, but legal counsel and state labor departments are usually available and willing to do what they can to help the case and protect the employee.

In general, an employee is expected to prove that they were mistreated at work by their employer. They are expected to document that they reached out and complained to their supervisor, human resources contact, management, etc., but the issue persisted.

If you claim constructive discharge, the court will want you to prove that this work environment was so brutal and intolerable that nearly any employee would have quit (if they have not already).

If your resignation came a long time after the issue, you would have to explain why it took you so long to leave. In general, there should be a clear description of the misconduct and its contribution to your resignation.

Contact your state labor department or an employment attorney for assistance, depending on state law and the circumstances of your discharge from employment.

The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.

Article Sources

  1. U.S. Department of Labor. "Constructive Discharge." Accessed Feb. 2, 2020.

  2. LexisNexis. "Do I Have a Case for Constructive Discharge?" Accessed Feb. 2, 2020.

  3. U.S. Equal Employment Opportunity Commission. "Discrimination by Type." Accessed Feb. 2, 2020.

  4. U.S. Equal Employment Opportunity Commission. "Prohibited Employment Policies/Practices." Accessed Feb 2, 2020.

  5. OSHA. "The Whistleblower Protection Program." Accessed Feb. 2, 2020.

  6. U.S. Equal Employment Opportunity Commission. "Time Limits For Filing A Charge." Accessed Feb 2, 2020.

  7. Supreme Court of the United States. "Green v. Brennan." Accessed Feb. 2, 2020.

  8. USA.gov. "Wrongful Discharge/Termination of Employment." Accessed Feb. 2, 2020.

  9. NCSL.org. "At-Will Employment - Overview," Accessed Feb 2, 2020.