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In the BLOG

What is constructive discharge?

Like wrongful termination, constructive discharge is an exception to at-will employment. In both cases, employment ends for an illegal reason. The major difference between wrongful termination and constructive discharge is who ends the employment relationship. In a wrongful termination case, the employer ends the relationship. In a constructive discharge case, the employee ends the relationship.

How do you prove constructive discharge?

In basic terms, constructive discharge occurs when the employee is forced to resign. But there’s nothing basic about proving constructive discharge. The employee must prove: (1) that the employer made work conditions so intolerable that any reasonable person would resign, and (2) that the employee did resign because of those conditions. Depending on where you file your claim and the law you allege the employer violated, you may need to prove that the employer intentionally made conditions intolerable or that the employer knew conditions were intolerable.
And what does intolerable mean? Under the law, there are very few work conditions that are tolerable enough to force an employee to quit. Courts may recognize constructive discharge claims where employees quit because of sexual harassment or acts of violence, or because the employer required them to do something illegal.

What about hostile work environment?

In many constructive discharge cases, employees claim they resigned because of a hostile work environment. However, proving hostile work environment (which is extremely difficult) isn’t enough. You must prove that the hostile work environment was so severe that it would have driven any reasonable person to quit. For example, consider these two cases, both decided by the DC Court of Appeals:

  • Steele v. Salb, 93 A.3d 1277 (D.C. 2014): An attorney alleged that she was constructively discharged because her employer wrongful accused her of misconduct; forced her to work overtime; denied her cash awards, a promotion, and opportunities to work on projects; gave her a poor performance rating; and excluded from meetings, among other things. The DC Court of Appeals disagreed with the attorney and found that the conditions were not bad enough to compel the employee’s resignation.
  • Atlantic Richfield Co. v. D.C. Commission on Human Rights, 515 A.2d 1095 (D.C. 1986): An employee alleged that she was constructively discharged because of her supervisor constantly criticized her for wearing tight and revealing clothing (which was comparable to other employees’); made comments about her breasts; questioned her about her after-work activities; insinuated that she was a prostitute; and ultimately accused her of acting like a prostitute. After the employee filed a discrimination complaint with the DC Office of Human Rights (“OHR”), her employer told her she would never find work in DC if she did not withdraw the complaint and pressured her to resign. The employee resigned. The DC Court of Appeals agreed with OHR’s determination that the employer constructively discharged the employee based on physical appearance.

Talk to an attorney before you quit.

As you can see, there is a high bar for constructive discharge. And decisions are very fact-specific. If at all possible, talk to an attorney before you quit your job. An employment law attorney can determine whether you can bring a claim for hostile work environment and the likelihood of success. It’s also important to understand the possible ramifications of rresignation. For example, if you resign but can’t prove constructive discharge, you won’t be able to recover back pay, even if your employer discriminated against you before you quit. Additionally, the statute of limitations for constructive discharge runs from the date you give notice of your resignation, not the date you actually resign.

Contact us today.

Alan Lescht and Associates handles constructive discharge and wrongful termination cases involving discrimination, reprisal, whistleblower retaliation, and public policy. We represent federal government employees around the world, as well as private-sector and state and local government workers in DC, Maryland, and northern Virginia. Contact us today if you believe you were constructively discharged or wrongfully terminated, or if you need legal advice about another employment issue.

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Discrimination Employee Rights Hostile Work Environment Law Retaliation Sexual Harassment Uncategorized Wrongful Termination


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