What Is Constructive Discharge?

Constructive discharge happens when an employee leaves a job because working conditions have grown intolerable.

There is no separate legal claim for constructive discharge. Instead, the law treats an employee who was constructively discharged as if he or she were fired.

This means the employee may be eligible for unemployment benefits, which are not available to most employees who quit their jobs. The employee may also make claims of wrongful termination.

Constructive Discharge Explained

Constructive discharge occurs when an employee quits because working conditions have become so intolerable that any reasonable person in the same situation would have felt forced to leave.

Sometimes, constructive discharge happens when an employer intentionally forces an employee out. For example, a manager who says, "I'm going to make your life here so miserable that you'll quit," then proceeds to do just that, has probably constructively discharged the employee.

Other times, constructive discharge takes place because of unsafe working conditions or constant harassment. At some point, the employee can't take any more and has to quit.

Examples of Constructive Discharge

• Mark, a roofer, is often forced by his boss to work without the proper safety equipment, including a safety harness. Mark asks his boss several times to provide the appropriate equipment, but his boss ignores him. He reports the issue to OSHA, but the agency fails to respond in a timely manner. Finally, Mark gets tired of taking unnecessary risks and quits his job due to safety issues. Mark has a good argument that he was constructively discharged and that he should be entitled to unemployment benefits.
• Darren, a waiter, has never gotten along with the restaurant's manager, Pat. Due to their clash of personalities, Pat tries to get Darren to quit by verbally berating him on a regular basis and by assigning him all the least desirable tasks, including taking out the trash and cleaning bathrooms. None of the other waiters are ever asked to do these jobs. Darren raises these issues with the restaurant's owner, who tells him to work it out with Pat. Darren confronts Pat and pleads for better working conditions, but Pat denies any wrongdoing. If Darren quits and files for unemployment benefits, he has a pretty good argument that he was constructively discharged.

How to Prove Constructive Discharge

Constructive discharge is difficult to prove. The employee must show that a reasonable employee who wanted to continue working would have felt forced to quit.

Typically, the employee must show now only that working conditions were no longer tolerable, but also that the employee gave the employer an opportunity to fix the problem.

In a harassment case, for example, an employee who is harassed constantly by coworkers but never files a complaint would have a tough time proving constructive discharge.

Similarly, if an employee never told the employer about dangerous working conditions, the employee might not have a claim.

Suing After You Were Constructively Discharged

An employee can't bring a lawsuit alleging only constructive discharge; there must be some underlying wrong, such as discrimination, harassment, retaliation, and so on.

An employee who proves constructive discharge has converted quitting into getting fired, in legal terms. But it isn't always illegal to fire an employee.

The employee must also prove that the reasons for the constructive discharge were illegal -- in other words, that the employee was fired for discriminatory reasons, for reporting safety violations, in retaliation for complaining about harassment, and so on.

If an employee can show that he or she was forced out for an illegal reason, the employee may have a wrongful termination case.

Constructive discharge may also entitle an employee to collect unemployment. Although employees who quit their jobs generally can't collect unemployment benefits, they will still be eligible if they quit with "good cause."

An employee who can prove constructive discharge will likely still be eligible for benefits. However, there will probably be a separate hearing, at which the employee will have to explain why he or she felt forced to quit. (Here's more information on getting unemployment benefits if you quit.)

Get Legal Help After a Constructive Discharge

Because constructive discharge is difficult to prove, you should consider consulting with an employment lawyer to find out whether you have a claim.

In fact, the best strategy is to talk to a lawyer before you quit your job, to make sure you've done everything you can to preserve your rights if you have to leave. A lawyer can assess whether your working conditions will likely be considered intolerable by a judge, as well as whether you've given your employer sufficient opportunity to solve the problem.

A lawyer can also help you negotiate with your employer to either improve the workplace or agree to a severance agreement that will allow you to move on.