In past postings, we’ve noted that employees who are suffering discrimination or harassment at work should report the incident immediately to their human resources department or a supervisor to give the employer an opportunity to investigate and fix the issue. But what happens when your complaints go unanswered to the point that you simply no longer can work at your job? Do you give up your discrimination claim if you decide to leave your job because you can no longer work in such a horrible environment? If your situation at work is serious enough, you might be able to rely on a legal concept known as “constructive discharge” to show you did not voluntarily leave your job and support your underlying legal claim against your employer, like discrimination or breach of contract.

In this post, we will discuss constructive discharge, how it fits within the context of employment legal claims, and what is required to show a constructive discharge. If you’d like to understand more about the idea of constructive discharge and how it might apply in your own case, please contact us. We have a group of very experienced employment discrimination attorneys who are ready to help you understand your claim and advise you of your rights under the law. Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help no matter where you are.

When Is Constructive Discharge Used In a Legal Claim?

Constructive discharge, on its own, is not a legal claim. Simply because an employee feels they were forced into quitting because they could no longer bear coming to work does not mean the employee can recover lost wages, benefits or other damages. Instead, constructive discharge can be used to show you were effectively fired from a job when firing is an element of a larger legal claim.

Take, for example, a wrongful termination case based on discrimination. We’ve discussed the grounds for wrongful termination claims in the past, but as you might guess, one of the key elements to any wrongful termination claim is the fact that the employee was terminated. If, in our example, the employer never officially terminated the employee but instead allowed the discrimination to continue despite repeated reports by the employee, the employee might have grounds for claiming that their decision to quit the job was effectively a termination by their employer.

How Do I Prove Constructive Discharge?

The standard for demonstrating that you were constructively discharged can vary across jurisdictions, both state and federal. In New York, an employee alleging constructive discharge must demonstrate that their employer deliberately created working conditions that were so intolerable that a reasonable person would have felt compelled to resign from their job. You’ll note that there are a couple of elements to a constructive discharge claim, from the employer’s intent to the reasonable person standard.

Employer Intent

In some jurisdictions, like the federal Second Circuit, an employee must prove that their employer intentionally created the working environment that forced them to quit. This means the employer either had to take affirmative steps to create the environment, such as through a policy or employment decision, or must have been aware of the employee’s complaint but failed to address it. So, for example, it isn’t enough that you were harassed at work by your co-workers based on your age if your employer is never made aware of the harassment. If you feel you’re being discriminated against or harassed at work, it is important for you to follow your employer’s reporting procedure and let your employer know.

Objectively Intolerable Working Conditions

The other key element of constructive discharge is showing that your work conditions were so bad that a reasonable person in your shoes would have quit. As you can tell by the definition, something more than a mere nuisance is required here. A one-time, offhand comment by a co-worker likely isn’t going to be enough. Similarly, just because you may find your supervisor annoying, that isn’t grounds on its own to support a constructive discharge claim. It’s even possible that some instances of discrimination might not be considered egregious enough to meet the objectively intolerable requirement. The bar is very high here. The more egregious and sustained the behavior is, the more likely it will be considered intolerable to the point of forcing a reasonable person to quit.

Take our earlier example of an employee claiming wrongful termination based on discrimination. If that discrimination was sexual harassment, and it included claims that a supervisor continually made lewd comments and inappropriately touched the employee over a period of time, the employee would have a strong argument in favor of this point. Ultimately, however, the decision of what a reasonable person would do under the circumstances will be determined by the court or jury.

Get Legal Help

If you’re a victim of discrimination or harassment at work and you’ve either quit or feel your only option is to quit, contact Eisenberg & Baum. We’re ready and able to help you understand the law behind constructive discharge and employment discrimination claims, and we offer free initial consultations. For employment discrimination and retaliation cases, we bill on a contingent fee basis, so you won’t have to pay us unless we win your case.