Forced To Quit? How To Know If You Have a Constructive Discharge Case

Constructive discharge involves quitting or leaving your job because your employer created intolerable workplace conditions that were so bad you had to leave. The employer does not fire the employee but makes the job so unpleasant that the employee is forced to resign.

When an employer’s discrimination or harassment forces an employee to quit, the employee can file a legal claim for wrongful termination. Contact a local wrongful termination lawyer for legal advice on your situation.

What Is Constructive Discharge?

“Constructive discharge is a wrongful termination claim where the employee shows that their employer made the work situation so bad that they had no other real choice but to resign,” says Samantha Pryor, an employment litigation attorney at The Halliburton Law Firm in Denver, Colorado. “It’s a doctrine in wrongful termination law, not a separate claim or cause of action.”

Some employers use constructive discharge tactics to force an employee to quit to limit the employee’s legal options. For example, an employee may have an employment contract that requires the employer to pay severance if the employer terminates them. Forcing the employee to quit is a way for the employer to avoid paying severance under the contract.

Many employees don’t pursue a wrongful discharge claim after constructive dismissal because they don’t think they can file a lawsuit if they quit their job. But employees have legal recourse if their employer took adverse action based on illegal reasons, including:

• Workplace discrimination
• Whistleblower retaliation
• Retaliation for reporting unsafe conditions
• Retaliation for reporting sexual harassment
• Retaliation for taking protected leave under the Family and Medical Leave Act (FMLA)

“There are many different types of claims that can be brought in a wrongful termination case, including retaliation, discrimination, and violation of public policy,” explains Pryor. “Constructive discharge isn’t a separate claim — I wouldn’t say I bring a claim for retaliation and then a separate constructive discharge claim. Instead, I would be arguing that the termination was unlawful and that even though the employee resigned, it was because of the unlawful basis for the termination.”

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Elements of a Constructive Discharge Claim

In a constructive discharge case, the former employee has the burden of proof to meet the elements of the claim. The employee has to prove the elements by a preponderance of the evidence — meaning more likely than not.

Elements of a constructive discharge claim may include:

• The employee is subject to working conditions in violation of public policy
• The employer intentionally caused or knowingly permitted the working conditions
• The workplace conditions were so intolerable that a reasonable employee would have no reasonable alternative but to resign
• The employee resigned because of the working conditions
• The employee suffered harm or financial loss

The elements of a constructive discharge claim can vary by state law. Talk to an experienced wrongful termination lawyer to find out what you need to prove for a constructive discharge lawsuit in your state.

Constructive discharge isn’t a separate claim… I would be arguing that the termination was unlawful and that even though the employee resigned, it was because of the unlawful basis for the termination.

What Constitutes a Hostile Work Environment?

A hostile work environment is more than just an unpleasant workplace. To qualify for constructive discharge, the working conditions are intolerable or involve a continuous pattern of mistreatment.

Constructive discharge can also involve a significant change in work conditions, such as changing an employee’s hours from a 9 to 5 schedule to the graveyard shift after they report unsafe working conditions. Mandatory relocation is another constructive discharge tactic that forces many employees to quit.

The employer must cause or tolerate the intolerable working conditions to be responsible for coerced resignation. You may need to show evidence that the employer knew about the working conditions and allowed them to continue. Evidence could include employee complaints and the employer’s failure to address those complaints.

“When we’re talking about wrongful termination, I always recommend that people prepare a timeline,” says Pryor. “The timeline doesn’t have to be pretty or well-written. It just needs to have the right stuff in it. I suggest a bullet point list with dates that explain what happened.”

In a civil lawsuit for wrongful termination, the jury determines whether the working conditions were so intolerable to justify a constructive discharge claim. The jury hears the evidence and decides if a reasonable employee would have found the conditions to force the employee’s resignation.

Steps To Take if You Were Forced To Quit

There is a difference between voluntarily leaving a job and being forced to quit because of an intolerable work environment.

Document what you can from before leaving your job. Make notes of your employer’s actions and when they changed. Record any adverse incidents, communications, and interactions with your co-workers, supervisors, and managers. Keep a copy of your employee complaints to your employer and their response.

Consider gathering evidence to support your wrongful discharge claim. Evidence can include emails, notes, or text messages that demonstrate harassment. Other evidence includes performance reviews, pay stubs, employment contracts, and employee handbooks.

“Text messages and emails are extremely helpful,” Pryor says. “Any kind of documentation that will help to tell the story and to support your side of the story is helpful — because a lot of these are he said-she said arguments.”

How Does At-Will Employment Affect My Claim?

Most workers have an at-will employment relationship with their employer. At-will employment laws mean your employer can fire you for any reason or no reason at all. However, employers cannot fire you for illegal reasons, like workplace discrimination or retaliation for reporting sexual harassment.

At-will employment can complicate wrongful termination cases. An employer can claim they fired you for performance-related issues. Performance issues are a valid reason to fire an employee. However, the employer may be covering up the real reason for firing because you reported unsafe workplace conditions.

In a wrongful discharge claim, you have to show that your employer’s reason is a pretext for a discriminatory motive. You can show the employer’s actions were motivated by illegal employment discrimination or retaliation. For example, you can show a history of positive performance reviews and promotions with a sudden change after you reported illegal activities.

“Having a copy of the letter of termination is so important because the reason for termination often changes,” says Pryor. “The employer gives one reason when they’re terminating the employee and a whole other rationale once we file a claim. With a letter of termination, you can say, ‘Well, you’re saying that now, but you didn’t address that here in this letter.’”

Do I Need a Wrongful Termination Lawyer?

A wrongful termination lawyer can review your case and explain your legal options. They can help you gather evidence to support your constructive dismissal case so you can recover compensation for back pay and lost wages.

Many employment attorneys offer a free initial consultation. Contact a wrongful termination lawyer for legal advice on your case.