Constructive Termination In The Workplace

Discrimination and sexual harassment are illegal.

So is retaliating against an employee for reporting discrimination, sexual harassment, or engaging in protected behavior, like complaining about not getting paid correctly.  Sometimes the discrimination, sexual harassment and retaliation gets so bad, it’s more than an employee can take. When that happens, an employee can quit and take the position that he or she was actually fired under the theory of “constructive termination” and did not voluntary resign.

Constructive termination is sometimes called “constructive dismissal” or “constructive discharge”. It is a legal doctrine that holds employers accountable for making a workplace so intolerable that an employee is forced to quit. This doctrine can be very important in determining whether employees may be entitled to additional compensation from their former employer.

The difference between quitting and being fired is significant. An employee that is fired is entitled to:

  • Unemployment benefits;
  • Can sue his or her employer for wrongful termination; and
  • Is entitled to an increase in damages for discrimination, sexual harassment and retaliation.

Under California law, a constructive termination occurs when an employee proves that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. However, just because a job is miserable or your boss is mean or a jerk doesn’t mean that an employee who quits is allowed to claim it was due to a constructive discharge.

In order to show that a constructive discharge has occurred, an employee must show that the working environment was truly intolerable. The intolerable conditions must have been sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. These intolerable working conditions must have been present at the time that the employee resigned. They must also be continuous—single, trivial, or isolated acts of misconduct by an employer are generally not enough to support a constructive termination claim.

If an employee quits because of a petty change in the job duties, poor performance evaluation, or because of insignificant things that have always bugged him or her about the job, a court will probably not find that a constructive discharge occurred. In addition, some workplaces are simply not pleasant by their nature and some bosses are miserable to work for. But, that doesn’t mean that the employees there are entitled to file claims for constructive discharge simply because the working conditions are far from ideal.

To prove constructive termination an employee must prove he or she quit because:

  • Intolerable working conditions existed at the time of the employee’s resignation.
  • The work conditions are so unusually adverse that a reasonable employee-motivated to work for the employer-would have felt compelled to resign.
  • The employer intentionally created or knowingly permitted these intolerable work conditions.
  • A reasonable employer would have realized that a reasonable person in the employee’s position would be compelled to resign.

The point is that the conduct required to show constructive termination is pretty high. More often than not, it is found that the employee leaves because they just don’t want to work for that employer any longer. That is fine and a reasonable response to bad or illegal working conditions. Except, the employee may not be able to claim or prove a claim of constructive discharge. If that occurs, he or she will lose valuable rights against the former employer, if the employee was subjected to discrimination, sexual harassment or retaliation.

If you have been subjected to discrimination, sexual harassment, or retaliation that you believe has made the workplace intolerable, talk to an employment lawyer before quitting. We can help you take the necessary steps to eliminate the illegal behavior and preserve your rights against the employer. Initial consultations and evaluations for employment related violations are confidential and free, so there is no cost to you to find out if you have a valid concern and are entitled to compensation.