What Is a Constructive Discharge?

Definition & Examples of a Constructive Discharge

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A constructive discharge occurs when an employee is forced to resign because the employer has made working conditions unbearable.

Learn more about what constitutes a constructive discharge and how to respond to one.

What Is a Constructive Discharge?

An employee is constructively discharged when they resign because they can no longer stay on the job due to 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 aren't work-related. In most cases, the hostile work environment must violate federal laws prohibiting sexual harassment or discrimination based on age, national origin, pregnancy, race, religion, sex/gender, and disability. 

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 pattern of incidents.

How a Constructive Discharge Works

A constructive discharge is a legal concept. It allows you to potentially file a wrongful termination, discrimination, or harassment lawsuit and file for unemployment benefits.

Keep in mind that there is a statute of limitations on pursuing a complaint. Private-sector employees have 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 the termination of employment that apply in your location. You should also contact a lawyer for assistance. For help finding a lawyer, contact your state's bar association or Legal Aid.

Unemployment Benefits

Employees who voluntarily quit typically don't receive unemployment benefits. However, workers who lose their jobs due to 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 unemployment claim.

If you're 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.

Requirements for a Constructive Discharge

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

Proving a Constructive Discharge Claim

With a constructive discharge claim, the burden of proof lies with the employee. 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, 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 any reasonable person in your position would have quit.

Key Takeaways

  • A constructive discharge is when an employee is forced to resign due to intolerable working conditions. 
  • Typically, the hostile work environment must violate federal laws prohibiting sexual harassment or discrimination. Whistleblowers and those asking for reasonable accommodations due to a disability are also protected from retaliation. 
  • If you're planning to file a lawsuit or complaint, you should do so promptly. 
  • If you experienced a constructive discharge, you may be eligible for unemployment benefits. 

Article Sources

  1. Department of Labor. "Constructive Discharge." Accessed June 28, 2020.

  2. U.S. Equal Employment Opportunity Commission. "Discrimination by Type." Accessed June 28, 2020.

  3. U.S. Equal Employment Opportunity Commission. "Prohibited Employment Policies/Practices." Accessed June 28, 2020.

  4. OSHA. "The Whistleblower Protection Program." Accessed June 28, 2020.

  5. Nolo. "Constructive Discharge: Were You Forced to Resign?" Accessed June 28, 2020.

  6. U.S. Equal Employment Opportunity Commission. "Time Limits For Filing A Charge." Accessed June 28, 2020.

  7. Supreme Court of the United States. "Green v. Brennan," Page 1. Accessed Feb. June 28, 2020.

  8. LexisNexis. "Do I Have a Case for Constructive Discharge?" Accessed June 28, 2020.