What is constructive discharge and why is it important? 

 Constructive discharge is a legal theory that allows employees to establish an adverse employment action even when they quit their job.  

 This is important because an “adverse employment action” is an essential element of most employment lawsuits. Adverse employment actions are actions taken by an employer which materially change the terms and conditions of an employee’s work life, and do so in a way that places the employee in a worse position. In order to prevail on a discrimination, harassment, retaliation, or other employment claim against an employer, employees must almost always point to some adverse employment action that their employer took against them. Without this type of showing, it is very difficult – and often impossible – for employees to recover damages in connection with an employment lawsuit. 

 An adverse employment action can take many forms: a demotion, certain types of discipline, a cut in pay or hours, and – most commonly – a termination. Terminations underlie many of the most valuable employment lawsuits because a terminated employee who prevails on their claim is typically able to claim damages in an amount equal to the wages they lost due to the termination (plus other damages, depending on where and under what law the employee is bringing their claim). You can learn more about what to do if you were just terminated here. While there are many forms of damages that employees can seek depending on the venue and applicable law, this article focuses specifically on cases where employees aim to recover lost wages as damages.  

Often, when employees are facing unacceptable or even unlawful treatment at work, they believe that in order to escape their job and still have a chance at recovering lost wages they must simply “tough it out” until their employer fires them. This belief can cause employees to continue working at a job despite facing an intolerable or dangerous work situation, just because they don’t think they “have a case” unless their employer terminates them. Employees can be left in a state of limbo, stuck awaiting their termination without any clear path to recovery or escape from the terrible conditions they are facing. While there is a kernel of truth in this belief – namely that in order to claim lost wages in an employment lawsuit, you must not be actively working at the job in question – employees are not always forced to continue working in intolerable situations without recourse. 

Indeed, the law provides a helpful – albeit narrow – option for employees in these situations: a legal theory called constructive discharge. This theory arises from the reality that not all resignations are voluntary. In short, it allows an employee to satisfy the “adverse employment action” requirement of wrongful discharge causes of action even in situations where the employee was indisputably the party who ended the employment relationship. This cause of action is an important tool in the toolkit of an employee who is facing an abusive or discriminatory workplace because it exists to protect employees who decide to quit rather than wait around in intolerable working conditions to be fired. Bragg v. Navistar Int’l Transp. Corp., 164 F.3d 373, 377 (7th Cir. 1998). 

What types of circumstances are considered to be constructive discharges? 

The central inquiry of the constructive discharge analysis is whether the conditions imposed on an employee are so intolerable that “any reasonable employee” would have resigned under the same circumstances. As with so many other legal frameworks, the central role of an imagined “reasonable person” in the constructive discharge analysis allows for a high degree of variability in the conclusions that juries, judges, or other decision makers reach when presented with any given set of facts. Thus, there are very few hard and fast rules to determine whether or not a given situation is likely to be considered a constructive discharge in the context of a potential legal claim.  

The constructive discharge standard is difficult to meet. In fact, in order to establish a constructive discharge, employees must show more egregious treatment than is needed to win a hostile work environment claim.  Robinson v. Sappington, 351 F.3d 317, 336 (7th Cir. 2003). In other words, in many cases, even if an employee is facing a hostile work environment, the law expects them to keep working for some period of time in order to try and resolve the issue. In these cases, the employee cannot prevail on a wrongful termination charge if they quit.  

With that said, repeated mistreatment of an employee can, in certain circumstances, lead to a constructive discharge. For example, someone “who is told repeatedly that he is not wanted, has no future, and can’t count on ever getting another raise would not be acting unreasonably if he decided that to remain with this employer would necessarily be inconsistent with even a minimal sense of self-respect, and therefore intolerable.” Hunt v. City of Markham, 219 F.3d 649, 655 (7th Cir. 2000). Further, a constructive discharge can occur when “an employer communicates to a reasonable employee that he or she will be fired and the employee resigns in response.” Wilkerson v. Springfield Pub. Sch. Dist. No. 186, 40 F. App’x 260, 262 (7th Cir. 2002). This latter type of constructive discharge often occurs when an employer gives an employee an ultimatum that they should either resign or be terminated.  

What are the strengths, weaknesses, and limitations of an employment claim based on constructive discharge? 

It is crucial to understand what exactly an assertion of constructive discharge can – and, more often, cannot – accomplish in an employment claim against an employer. Put simply, a successfully proven instance of constructive discharge means that – for purposes of that specific case – an employee’s resignation will be treated like a termination by the employer. However, it is very important to note that “constructive discharge” is not a cause of action unto itself. This is a common misconception.  

In other words, just because an employee has suffered a constructive discharge, it does not necessarily mean that they have a viable employment lawsuit against their employer based on that constructive discharge. This is because, just like how not all terminations are carried out for unlawful reasons, neither are all constructive discharges. Only those terminations and constructive discharges that are caused by unlawful reasons are actionable. You can learn more about the value and viability of workplace discrimination claims here 

But, for purposes of this article, it is sufficient to understand that only constructive discharges which happen because of some discriminatory or otherwise unlawful action taken by the employer are actionable. For example, imagine an employee who commits a fireable offense and the employer tells them that they must either “resign or be terminated.” If the employee chooses to resign, they have likely suffered a constructive discharge, but there is no indication that they have a viable claim against their employer based on this termination, since the reason for the termination was apparently legitimate. Similarly, if an employee is repeatedly assigned an impossible amount of work, offered no assistance in completing that work, and constantly berated by their supervisor for their inability to accomplish this impossible task, it is possible (although not guaranteed) that this treatment could eventually rise to the level of a constructive discharge. However, so long as this undeniably unfair and immoral treatment was not directed at the employee for an unlawful reason, this constructive discharge is also not likely actionable.  

Asserting constructive discharge is not without its risks. If an employee quits with the intention of claiming constructive discharge, they risk forfeiting their ability to claim lost wages in a future employment claim. While this should not stop employees from removing themselves from dangerous and abusive working conditions, it does mean that – if possible – it is important to carefully consider and plan out one’s options before resigning. Sometimes, doing just a little extra work to document, clarify, and attempt to remedy the intolerable working conditions can be the difference between a viable lawsuit against an employer and an unpaid period of unemployment that a court is likely to view as both voluntary and inactionable.  

What should I do if I am thinking about quitting or already quit my job because of intolerable working conditions? 

If you are facing intolerable working conditions that you believe are based on some protected status or activity, feel like you “just can’t take it anymore,” and are considering quitting your job (or already did so) with the intention of alleging unlawful constructive discharge, it is wise to consult with an attorney before quitting. A skilled employment attorney will be able to review the facts of your working conditions and offer opinions and advice about whether or not your employment situation is likely to be considered a constructive discharge. Feel free to contact Hawks Quindel to schedule a consultation with any employment attorney to answer questions you may have about your intolerable work conditions.