What is Constructive Discharge in Employment Law

Constructive discharge is a term that refers to a workplace situation that is so intolerable that an employee has no choice but to resign. In Massachusetts, which is an at will employment state, you can resign anytime you want. But if you are in effect forced out, you may not be able to make a wrongful termination claim unless you can prove constructive discharge.

Is Constructive Discharge a Legal Claim?

There is no independent cause of action for constructive termination or discharge. It basically is a theory that allows you to hold your employer responsible for the termination of your employment even if they do not actually fire you.

An example is sexual harassment in the workplace. You may be subjected to unwelcome conduct but still have to show up at work every day. You can bring a sexual harassment claim seeking damages for your emotional distress. But if you have not been fired, you may face a difficult choice between giving up your job with no compensation and enduring the behavior.

That is the role of constructive discharge. If the harassment makes your job so intolerable that a reasonable person would not continue to work there, you can make a constructive discharge claim. This means you can seek the same kinds of damages as if you were fired, including back wages.

How to Prove Constructive Discharge

There are two basic elements to a constructive discharge claim.

First, the working conditions must be so bad that a reasonable employee in his or her position would have felt compelled to resign.

Second, your employer either intended to force such resignation or had actual knowledge of the intolerable working conditions.

Of course, the reason for the intolerable conditions has to be unlawful as well. A working environment caused by a mean co-worker that causes an employee to resign would not amount to a constructive discharge, at least for purposes of a civil claim.

In contrast, if conduct that qualifies as sexual harassment creates a hostile work environment, the situation may become severe enough to amount to constructive discharge.

Intolerable Working Conditions

There is no simple test for how bad the situation must be to amount to constructive discharge. Instead, the question is whether a reasonable person in that situation would feel compelled to resign.

As a general rule, the less outrageous each incident is, the more frequent and pervasive the behavior would have to be. For example, if the behavior that is making you uncomfortable is co-workers making off color jokes and sexual references, they probably need to engage in that behavior on a regular and repeated basis for it to justify your resignation.

Other behaviors that are extreme and clearly unacceptable probably need only happen once. An outright sexual assault does not need to be repeated to justify resignation.

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The Employer's Intent or Knowledge

If the person doing the harassing is the owner or CEO of the company, the employer's intent is pretty clear. More often there is a middle level supervisor who is doing the bad acts. In that case, it is important that you put the company on notice of the behavior.

If you resign without first trying to report the harassment, you may not be able to establish a constructive discharge. Remember that reporting workplace harassment is a protected activity under the law. That means that your employer is not allowed to take action against you for making the report.

Constructive Discharge and Unemployment Benefits

Generally, unemployment benefits are not available if an employee voluntarily resigns. If you have been effectively forced to resign by terrible working conditions, you may still qualify if you can prove that the employer's conduct or conduct the employer was aware of forced you to quit.

Should You Remain on the Job?

This can be a very difficult decision. On the one hand, you have a right to walk away from a job that is not good for you. Many people we speak with in this situation are experiencing very real physical and mental health symptoms as a result of the workplace behavior. In a very real sense, they feel they have to take care of their own health.

On the other hand, you may need the job. You may also be concerned about the impact of quitting on your ability to hold your employer accountable for its actions.

At the end of the day, if you feel you cannot go to work and be safe, you need to do what you have to do to protect yourself regardless of the legal consequences. Still, it is a good idea to seek legal advice while making that decision.

Even if you know you are going to have to quit, there may be things you can do beforehand that increase your chances of proving constructive discharge. An example is making sure you have reported the discrimination or harassment to management. Another example might be documenting the steps you have taken to try to make the situation better.

How We Can Help

If you feel that you are the target of sexual behavior, misconduct or harassment, and unsure you can continue to do your job, we can help. You can use the button below to schedule a call back from a member of our team, give us a call at  781-784-2322, or fill out our web form  to let us know a little more about your situation.