Constructive Discharge Claim

What Is a Constructive Discharge Claim?

A constructive discharge claim is a lawsuit filed by an employee who has quit a job because the conditions under which they were working had become intolerable, primarily on purpose with the goal of forcing the employee to leave. Constructive discharge claims are said to begin accruing on the date of the last adverse action of the employer.

Key Takeaways

  • A constructive discharge claim is a lawsuit filed by an employee who has left their job because the working conditions had become intolerable.
  • Working conditions by an employer are sometimes made intolerable on purpose with the objective of forcing the employee to resign.
  • A constructive discharge claim must show that the employer's actions were done to indirectly punish the employee when it could not directly punish the employee.
  • Typically, an employee must file a constructive discharge claim from the time the inappropriate action occurred but can also be after they quit.

Understanding a Constructive Discharge Claim

In order for a constructive discharge claim to be considered, the claim must demonstrate that the employer’s actions allowed it to indirectly punish (such as through hour reductions) the employee when it could not directly punish (such as by verbally accosting the employee) the employee until they quit.

During the course of a claims investigation, the focus is on the conduct of the employer more so than it is on the conduct of the employee. Because the employer may not be able to solve problems surrounding a claim after an extended time period, constructive discharge claims must be filed within a certain time period after an employer’s actions occur.

The time period typically begins on the date that the employer is said to have acted improperly, though in some cases the employee may have until the date of quitting before the time period begins. The employee may be required to try to resolve the issue before a claim is made.

As an example, consider if an employee indicates that they have been passed over for a promotion for a reason other than performance, such as gender or race. The employee’s manager, after hearing of the employee’s complaint, places the employee on leave because of non-performance despite the employee recently receiving a positive performance review.

The employee may file a constructive discharge claim indicating that conditions at the office deteriorated after being passed over for the promotion and that the employer indeed retaliated. In this case, the employer may be determined to have acted improperly.

Constructive Discharge Scenarios

The following are some scenarios that could qualify as leading to a constructive discharge.

  1. Employee was the victim of sexual harassment by a supervisor or boss
  2. Employee was the victim of sexual harassment by a co-worker and complained to management, but management failed to address the problem, which then continued
  3. Employee was treated badly at work because of their age, sex, race, national origin, religious beliefs, or disability
  4. Employee made a reasonable complaint that they believed they were being treated badly because of age, sex, race, etc., and management responded ineffectively and the environment became even more hostile. This is known as an unlawful retaliation claim.
  5. Employee took leave under FMLA, sought overtime to which they believed they were entitled, sought a reasonable accommodation under ADA, or filed a workers' compensation claim, and thereafter was retaliated against by the employer
  6. Employee made a whistleblower complaint and was thereafter subjected to a hostile work atmosphere

Can You Sue for Constructive Discharge?

Yes, an individual is allowed to sue for constructive discharge even if they resigned rather than being laid off or fired. An employee would have to show that the employer purposefully created intolerable conditions that led to the employee resigning.

What Are Some Common Reasons for Claiming Constructive Discharge?

Common reasons for claiming constructive discharge include an employer reducing your working hours, demoting you, not taking action when you were harassed at work, withholding pay, making unacceptable changes to your workday, and not providing the support needed to carry out your responsibilities.

Is It Hard to Prove Constructive Discharge?

Yes, it is usually hard to prove constructive discharge. The burden of proof lies with the employee and they have to present specific facts that prove the employer created a hostile work environment that led to or would lead to them resigning. Given the complexity of workplaces and the various decisions that employers make regarding a company, it can be difficult to prove certain actions were taken that led to constructive discharge.

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  1. Justia. "CACI No. 2510. 'Constructive Discharge' Explained." Accessed Oct. 18, 2021.

  2. United States Supreme Court. "Marvin Green, Petitioner, v. Patrick R. Donahoe, Postmaster General," Pages 7-9. Accessed Oct. 18, 2021.