When an employee leaves their employment, this is called separation from employment. Many cases of separation from employment are straightforward, such as when an employee simply resigns or is fired for cause. Constructive discharge is sometimes less clear-cut.
In constructive discharge, a hostile work environment makes working conditions so intolerable for an employee that they are forced to quit. The conditions must be so adverse that no reasonable person could continue working in the situation. In this type of situation, the employer usually tries to make the employee quit. Perhaps they pay them differently than other employees, reduce their pay for no reason or discipline them constantly without cause.
In essence, the employer makes the work environment so unbearable for the employee that the employee is essentially discharged or “constructively” fired. The employee resigns because they cannot tolerate the work environment.
An employee who is forced out of a job in a constructive discharge may also have a claim for wrongful termination, in which the employer’s reasons for firing or mistreating the employee are illegal or incompatible with the covenant of good faith and fair dealing. As with wrongful termination, the employer must either violate the employee’s employment contract or violate public policy by targeting the employee.
What Are Some Other Types of Separation From Employment?
An employee may choose to leave a job on their own, which may not necessarily happen because their work environment was hostile. People leave jobs for many different reasons. This is called voluntary termination, or resignation.
Also, as discussed above, there may be a case for wrongful termination. This can happen if there is a firing that is not justified by poor performance on the part of the employee, but is done based on some other illegal or impermissible reason. This might occur when an employer fires an employee based on their gender, race or disability.
What Laws Protect Employees From Constructive Discharge?
When the employee claims constructive discharge, they usually do not make a claim solely based on their employer treating them poorly. Rather, the employee makes a claim that they were constructively discharged in violation of a particular law or public policy.
For example, an employee might claim that they were the victim of harassment or discrimination, but they would need to reference the law that governs their particular claim. Some of the laws that might support an employee’s constructive discharge claim are as follows:
- American with Disabilities Act of 1990 (ADA): If an employer knows that an employee has left their job because they were discriminated against or harassed in their workplace based on their disability, the employee’s claim may be supported by the ADA. The disability might be a physical, intellectual or any other type of disability.
- Equal Pay Act: If a woman leaves her employment because she is consistently paid less than her male colleagues who do the same work, she might have a claim for constructive discharge supported by the Equal Pay Act. She would have to show that the disparity existed because of her gender.
- Family and Medical Leave Act (FMLA): If an employee is mistreated for taking leave due to pregnancy, care of a newborn, their own illness, or the illness of an immediate family member, they may have a claim for constructive discharge supported by the provisions of the FMLA. The FMLA provides for twelve weeks of unpaid leave for the purposes identified. If an employer retaliates because an employee took leave to which the FMLA entitles them, this might qualify as constructive discharge.
- Age Discrimination in Employment Act (ADEA): If a hostile work environment forces out the employee, and they believe it is based on their age, the ADEA may support their claim.
- Title VII of the Civil Rights Act of 1964 (Title VII): When a person is constructively discharged from their job and believes it is due to discrimination, they may file a claim under Title VII of the Civil Rights Act. The constructive discharge would have to be based on behavior that was motivated by discrimination based on race, color, sex, national origin, or religion.
- National Labor Relations Act: Employees who were forced out for attempts to unionize or other union activity may file under the National Labor Relations Act.
- State Employment Laws: Each state has its own laws regarding employment, which should be consulted in a constructive discharge case.
An employee may also file a claim based on retaliation, which occurs when they are forced out for reporting safety and health issues pursuant to the Occupational Safety and Health Act. Or a claim for constructive discharge may be based on harassment or other mistreatment that an employee is subjected to because they engage in legally protected whistleblowing activity.
Another type of claim an employee may make is for breach of contract. This could occur when the employment contract between employer and employee contains a provision stating that a person’s employment can only be terminated for good cause.
If the person is constructively discharged without the justification of good cause, it would also breach the contract and qualify as wrongful termination.
What Must an Employee Prove in Order to Win Their Constructive Discharge Case?
The Equal Employment Opportunity Commission (EEOC) has established a three-part test for determining whether there has been a constructive discharge. The elements are as follows:
- A reasonable person, under the same circumstances as the employee, would have found the working environment hostile.
- The employee brought the situation to the attention of the employer.
- The employer failed to address the situation.
- The environment created by an employer who was practicing discrimination or otherwise violating public policy as expressed in some state or federal law.
- The hostile working environment led directly to the employee’s resignation.
In a case for constructive discharge, the employee has the burden of proving that they were constructively discharged.
Generally, an employee must show not only that working conditions were intolerable, but also that the employee notified the employer of the problem and gave them an opportunity to address it, but the employer failed to act. In a harassment case, for example, an employee who is harassed constantly by coworkers but never notifies the employer would be challenged to prove constructive discharge.
The employee does not have to prove that they notified their employer in writing of the situation. However, as a practical matter, an employee would be well advised to document what happens to them and to notify their employer in writing about it.
Are There Any Defenses to Constructive Discharge?
As always, an employee who wants to claim constructive discharge must be aware of the statute of limitations for filing a claim. The statute of limitations is a deadline for filing a lawsuit, and it varies depending on whether the person is filing a claim in federal or state court and the nature of the work the employee did.
Claims are often successful because an employee resigns soon after they endure a clear act of mistreatment, e.g., a demotion or cut in pay. In addition, it is important to remember that the employee must notify the employer and try to follow the employer’s internal complaint procedures, such as filing a formal written complaint for sexual harassment. This is because an employee has to show that the employer was aware of the hostile environment and failed to make changes to address the situation.
If an employee has completely failed to notify their employer about the problem and give the employer an opportunity to respond, their lawsuit may well not be successful.
Do I Need the Help of a Lawyer With My Constructive Discharge Issue?
If you believe you have been the victim of a constructive discharge, you want to consult a wrongful termination lawyer in your area. The lawyer can discuss your case with you and advise whether your claim will likely be successful. If so, the attorney can guide you in making your claim against your former employer.
If you work in a hostile environment and believe it is motivated by discrimination, you should consult a wrongful termination before you resign. Your lawyer can ensure that you take the right steps to make a case for constructive discharge before you resign if that is what you must do. It is possible to avoid that outcome by reporting the situation to your employer, and your lawyer can help you with that process.
