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Constructive Discharge: When a Resignation is Really a Firing

We all know that resignations are not always by choice. For example, it is hardly voluntary if an employer tells a worker that she can either resign or be fired. But even resignations which at first blush appear voluntary may legally be no different than a firing.

The term is “constructive discharge.” Contrary to the common meaning of the word “constructive,” the phrase doesn’t refer to a “good” discharge; it describes a resignation which is, in all but name, an involuntary termination. This occurs when a worker resigns because her work conditions have become unendurable.

The central question in whether a resignation qualifies as the constructive discharge is, “Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?” Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004). A merely frustrating or dissatisfying work environment is insufficient.

The idea of constructive discharge arose early in the last century and continues to come up regularly in employment discrimination and retaliation cases. Eighty years ago, the National Labor Relations Board (NLRB) recognized that companies should be held responsible for retaliating against unionizing workers by creating intolerable work conditions to get them to quit. Since that time, courts have applied the constructive discharge doctrine in a wide variety of retaliation and discrimination cases.

There is a great range in what conditions are recognized as “intolerable” to a “reasonable person.” For example, courts have found support for constructive discharge where resignations resulted from meaningful reductions in pay or benefits, humiliating demotions, companies’ knowing failure to remedy harassment, employees being told they would be terminated, and employers’ significant failures to accommodate religious beliefs, pregnancy, or disability. This is by no means a complete list.

Further, courts recognize that adverse work conditions or employer actions should not be considered in isolation. Negative conditions are cumulative and can add up to a work environment that no one could reasonably tolerate. Thus, even if individual examples of adverse treatment or circumstance are not sufficient for constructive discharge, the totality may be.

In the past, some courts also looked at whether the employer actually intended to cause the intolerable environment in order to cause a resignation. However, a recent decision by the U.S. Supreme Court suggests that employees are not required to prove that the employer acted deliberately. See Green v. Brennan, 136 S.Ct. 1769, 1779-1780 (2016). Going forward, this may mean more resignations are ruled to be constructive discharges.

If you were compelled to resign because of unbearable work conditions or believe that this will soon be the case, you should consult with an employment lawyer about the situation.

Sanford Heisler Sharp has experienced employment lawyers in New York, Washington, DC, San Francisco, San Diego, and Tennessee.