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What Is Constructive Discharge?
Constructive discharge—also called constructive dismissal—occurs when an employee resigns due to pressure from the workplace or a hostile work environment. Though the employee voluntarily resigned, the pressures of an intolerable workplace ultimately drove them to quit.
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What Are Examples of Constructive Discharge?
Constructive dismissals involve specific circumstances, including hostile work environments, breach of contract, unlawful conduct, and conditions like discrimination, unsafe work environments, or harassment. Employees may feel like their employer is coercing them to quit, or may choose to quit in light of unsafe or discriminatory environments.
Some common constructive dismissal causes include:
- discrimination or harassment from coworkers or managers
- underpayment or withheld pay
- refusal for reasonable accommodations
- employer retaliation for taking approved FMLA leave or reporting interpersonal concerns to HR
- demotions or docked pay with no documented reason
- unsafe working conditions
Is Constructive Dismissal Legal?
There aren’t currently any dedicated employment laws that make constructive dismissal illegal. That said, constructive discharge is the result of an intolerable workplace, which can involve one or more violations of employment laws like the Americans with Disabilities Act (ADA).
As a result, you can file a legal claim against an employer following a constructive discharge. Discharge claims may include compensation for lost wages, lost benefits, and damages from the resignation.
California is the only state with clear guidance in place for constructive dismissal. Constructive discharge in California has protection under the state’s constructive termination claims, which include voluntary resignations and forced terminations.
How to Prove Constructive Discharge
To successfully win a constructive discharge claim, there are typically several elements you must prove.
Intolerable Working Conditions
You must be able to prove that your working environment was so hostile that anyone else in your situation would feel like quitting was the only option. Intolerable conditions can include discrimination based on protected classes, harassment, unsafe working conditions, withheld pay, or other mistreatment.
Some of these conditions may be difficult to prove, so create a clear paper trail. File formal complaints to HR and supervising managers if relevant, and forward copies of the full exchanges to your personal email.
Employer Responsibility
You must be able to prove that the hostile work environment was a result of your employer’s actions, or lack thereof. Managers may harass or discriminate against specific employees, for example, but they’re also responsible for intervening if your colleagues are creating a hostile work environment.
Again, documentation is key here. Create an intentional paper trail if you plan to file a constructive dismissal claim after leaving.
Lack of Alternative Actions
To win a constructive discharge claim, you must be able to demonstrate that your only reasonable action was to voluntarily resign. The resignation must be a last-resort effort after attempting to address issues through internal channels.
Wize Tip: Many companies have documented discrimination policies. Contact your HR department with any questions about these policies to ensure you’re following all internal channels for reporting.
Unlawful Conduct
Constructive discharge cases may hinge entirely on whether or not the employer’s actions breach your contract or indicate unlawful conduct. Actions that either breach contractual agreements or violate employment laws significantly increase your odds of winning your case.
How to Address Constructive Dismissal
If you’re currently experiencing a hostile work environment, breaches in contract, or lack of accommodations, you may consider a constructive dismissal.
Before you do, contact your HR department. Explain the situation and provide as much documentation and evidence as possible. Ask for their support and ask about any internal policies that you need to follow for reporting. Report all existing and new retaliatory incidents to your supervisor and HR as soon as possible.
If the company doesn’t make changes and you need to resign, make copies of the paper trail you’ve created. Once you resign, you can fail a constructive dismissal claim against your employer. You can work with an employment law attorney, who can help you determine whether or not you have a solid case. They can also help you file your claim.
What Doesn’t Qualify as Constructive Discharge?
When your workplace culture, policies, or internal dynamics shift, it may spark you to start considering new employment opportunities. However, many of these changes don’t contribute to constructive discharges.
Here are a few examples of what doesn’t qualify as a cause for constructive dismissal:
- scheduling changes impacting all team members equally
- reductions in hours
- legal mandatory overtime
- failure to meet professional goals following a performance improvement plan (PIP)
- rejection for internal promotions
Wize Words
Constructive discharges involve voluntary resignations, but many jurisdictions treat these dismissals as wrongful terminations.
If you feel like resigning is your only option, make sure you collect evidence and follow all internal processes to increase the odds of winning your claim.
Disclaimer: Wizehire does not offer legal advice. Please check your local laws or consult with a lawyer about constructive discharge claims.
Frequently Asked Questions
Wrongful terminations involve employers directly ending a team member’s employment for unlawful reasons, including discrimination or the team member reporting harassment. Constructive discharge occurs when the employee voluntarily resigns due to pressure, coercion, or an intolerable workplace environment. You can file claims against your employer for both wrongful termination and constructive dismissals.
There is a statute of limitations on constructive dismissal claims. This means you must file a charge of discrimination within a set number of days, which begins immediately following your resignation. Private sector employees must file a claim within 180 days of resigning, though sooner is often better. Federal employees must contact an equal employment opportunity (EEO) officer in their agency within 45 days of the alleged concern. Check your local laws or ask a lawyer about the rules governing your claim.
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