Helping Organizations with Employee Concern Employers: Book Time With THE FIRM
Constructive Discharge

When an Employee Files a Claim for Constructive Discharge

#hrstruggles #lynchlaw #employment May 3, 2023

Constructive discharge is a term used in employment law when an employee resigns from their position because of hostile work conditions created by the employer. A constructive discharge, also called constructive dismissal, occurs when a worker quits due to an intolerable work environment. Since a constructive discharge results from circumstances that were staged, the employee's decision to leave the organization was not as much of a resignation as it was a termination. For example, when an employer consistently places unreasonable expectations on an employee to obtain their resignation, the employer's actions can constitute a constructive dismissal. When constructive discharge occurs, the employer intentionally creates an unpleasant environment where the targeted employee feels their only option is to quit because they can no longer perform their duties. When the employee resigns, the employer has effectively avoided the unpleasantness of firing the employee directly. However, if the former employee files a legal claim, the courts can consider an act of constructive discharge as a forced or involuntary resignation and a constructive discharge can serve as the foundation for a wrongful termination action.

 Employment Law and Constructive Discharge Claims

In the United States, the term "constructive discharge" refers to the involuntary resignation of an employee. Although no single federal or state law prevents a constructive dismissal, from a legal standpoint, when a constructive discharge occurs and a worker is forced to leave their position due to intolerable working conditions, these circumstances could violate employment legislation. These laws include: 


·       Family and Medical Leave Act

·       Equal Pay Act

·       Americans with Disabilities Act

·       Age Discrimination Act

·       Title VII

·       Age Discrimination Act

·       And State Employment Laws


EEOC Evaluations

When constructive discharge cases are brought before the court, the burden of proof lies with the employee. The Equal Employment Opportunity Commission has provided a three-part evaluation to determine if a constructive discharge has occurred: 


  1. A reasonable person in the complainant's position would have found the adverse working conditions intolerable; 

  2. The conduct by the employer that constituted discrimination against the complainant created intolerable working conditions; and 

  3. The complainant's involuntary resignation directly resulted from the intolerable working conditions. 


Elements of a Constructive Discharge Claim

An employee who is unhappy with their work environment cannot simply quit their job and then claim that they were constructively discharged due to the actions of their employer. Typically, the employee must supply evidence to prove their working environment was so intolerable that a reasonable employee in the same position would have felt compelled to resign. The evidence necessary to prove such a claim includes the following:


· The employee must also prove that the employer either had prior knowledge of the intolerable working conditions

· The employer intended to force a resignation from the employee. 

· The conditions that gave rise to the resignation were sufficiently extraordinary to overcome the typical motivation of a reasonable employee to remain on the job.

· There was a continuing pattern of extraordinary and egregious conduct.


Isolated acts or a single unfavorable evaluation does not typically establish intolerable or unusually adverse employment conditions. However, in difficult situations, a single action may be enough to constitute extraordinarily adverse conditions.


What the Courts Consider

Most employees are presumed to be employed in an at-will employment relationship with their employer. This means the employee can be terminated at any time, with or without cause. Generally, the law does not require employers to treat their employees fairly or provide them with a stress-free environment. However, employers are required not to discriminate or act in ways that violate state and federal laws. Absent improper behavior, unlawful conduct, or breach of an employment contract by an employer, the courts will generally not permit employees to file claims regarding constructive discharge. When addressing whether an employer's conduct amounts to an intolerable working condition that is sufficient to permit a constructive dismissal, the courts focus on factors that include: 


  1. Whether the worker was requested or required to participate in illegal activity,

  2. Whether the worker duly acknowledged or investigated the employee's complaints,

  3. The nature of the worker's unlawful conduct, and

  4. The time between the allegedly illegal conduct and the worker's resignation.


What are "Intolerable Working Conditions"?

For an employee and their attorney to successfully argue before the court that they were constructively discharged under federal antidiscrimination laws, the worker must provide sufficient evidence to show that the circumstances created in the workplace were so intolerable that they were forced to resign. It is not enough for a former employee to show that their supervisor mistreated them; they must have enough evidence to indicate that the working conditions imposed on them were "objectively" intolerable. This means that the working conditions were so bad that the average person in a similar situation would have also felt compelled to terminate their position with the company. In practice, providing intolerable working conditions is a very high standard, often challenging to meet. To be successful, the resigning employee must submit proof that the employer engaged in especially egregious conduct.


What is the “Reasonable Person Standard”?

It is not enough for employees to feel their working conditions are intolerable. Instead, the courts must determine whether a reasonable person in the employee's position would also find the conditions so adverse that they would be forced to resign. If the court determines that a reasonable person working at the same job would not find the conditions intolerable, the employee's resignation may be treated as a voluntary resignation by the employee, even if the employee thinks that they could have never performed their job effectively under the adverse conditions imposed by the employer.


The Employer's Knowledge

Employees generally must notify their supervisor, the management team, or the human resources department at the organization of the intolerable conditions that are occurring in the workplace. By reporting this situation to someone in authority, the employee allows the employer to correct the problem. If the employee chooses not to inform the employer, and the employer is not aware of the intolerable working conditions, the employee generally will not be successful in proving a constructive discharge claim.

For an employee to prove that their employer forced the employee's resignation, the employee generally must prove that:


·       The employer either intended to create or maintain an intolerable working environment or 

·       The employer had prior knowledge of the adverse conditions. 

·       The employer did nothing to correct the situation. 


The Employee's Duty

In general, if the employer has taken no "tangible action" against the employee, such as a demotion or a reduction in compensation, the employee will likely have to show that they reported the adverse working conditions to someone in authority to give the employer a chance to remedy the situation. This rule allows employers to voluntarily address and rectify the problem, making legal action unnecessary.


Constructive Discharge Vs. Wrongful Termination

While both legal terms relate to the termination of employment, the primary difference between wrongful termination and constructive discharge is the individual who ends the employment relationship. In constructive discharge cases, the employee terminates the relationship, and in wrongful termination cases, the employer ends it.


Constructive Discharge Lawsuits

Employees cannot file a lawsuit that alleges only constructive discharge. The claim must include another legal matter, such as discrimination, harassment, or retaliation. If the employee can prove that he or she was forced out of the company for an illegal reason, the employee may have a valid wrongful termination case. Employees who leave their positions due to a constructive discharge may also be entitled to collect unemployment benefits. Although employees who quit their jobs generally are not permitted to collect unemployment, workers may still be eligible if they quit with "good cause."


Constructive Discharge and Discrimination

The U.S. Supreme Court addressed constructive discharge to cases brought under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). These federal laws prohibit discrimination and harassment in employment based on specific protected characteristics. Some state courts also recognize the concept in similar cases under state laws. If you are an employer and are facing charges from an employee who is claiming that they were harassed or discriminated against because of race, gender, religion, sex, nationality, age, or disability, and it caused them to leave their employment, you should consult with an attorney. 



Constructive discharge occurs when employees resign because their working conditions have become so intolerable that any reasonable person in the same situation would also have felt compelled to leave. Sometimes, constructive discharge occurs when an employer intentionally forces an employee out. Other times, constructive dismissal occurs because of unsafe working conditions or constant harassment. There comes a point when the employee has had enough and cannot continue working in a hostile environment. Constructive discharge cases, however, can be challenging to prove. The employee must show that any reasonable worker would have felt forced to leave due to intolerable workplace conditions. Typically, the employee must also show that they notified the employer of the problem and allowed the employer to correct the issue, but the employer chose not to correct the problem.

Even though constructive discharge claims are challenging to prove, employers should consider consulting with an employment lawyer who can assess the merits of the case. Your attorney can determine whether the working conditions experienced by the plaintiff will be considered intolerable by a judge and whether you, as the employer, were provided with sufficient opportunity to resolve the problem. 


Talk to a Lawyer About Constructive Discharge Claims

Constructive discharge cases are fact specific and can be complicated. For the court to determine if an employee was forced to quit his or her job in a way that amounts to constructive discharge requires the court to consider the unique circumstances of each case. If you are an employer facing a claim about constructive discharge, call the Lynch Law Firm now to get a legal assessment of your situation.

If you are an employer needing assistance regarding a claim citing constructive or you require legal assistance to understand your rights and options, call the Lynch Law Firm now to discuss your situation and learn how we can help.


If You Have Questions About Employment Discrimination

If you are an employer and have questions, need assistance updating your policies and practices, or need help finding creative solutions for complying with EEOC laws, please contact the attorneys at the Lynch Law Firm. Please email us or call 512 298 2346. 

About Natalie Lynch: Founding Attorney

 Natalie R. Lynch, a business and employment law attorney in Austin, Texas, has demonstrated expertise in workplace investigations, employment law, and entity formations. Credentialed through the Association of Workplace Investigators (AWI), Natalie is the only consulting and credentialed expert in Central Texas who conducts investigations into allegations of harassment, discrimination, and hostile work environment. As a credentialed dispute resolution mediator, she routinely collaborates with general counsel, internal and external counsel, employment litigators, employment generalists, and senior human resources professionals. She is licensed in Texas, Wyoming, and Colorado. With her extensive business background and solution-focused, purposeful, no-nonsense approach, Natalie excels at:


  • Business formation

  • Transactional matters

  • Employment law

  • Employment discrimination matters.

  • Contracts

  • Employment litigation avoidance

  • Harassment Prevention Training Modules 

  • complianceXculture


Schedule a Free Consultation with the Lynch Law Firm Now


The laws enforced by the EEOC protect employees and job seekers from employment discrimination that stems from decisions made based on race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information. Employers have an obligation to their employees to identify and prevent employment discrimination. When individuals or groups of individuals are the victims of employment discrimination, the objective of the law is to provide relief. It is possible for victims to recover compensatory, punitive, or liquidated damages when they have been subject to an employer's intentional or unintentional acts of discrimination.

If you are an employer and you need assistance complying with EEOC laws, contact the Lynch Law Firm for help now. Please email us at or call 512 298 2346.

Our lawyers can help you navigate the complexities of your legal matter from inception to resolution. We also assist you in developing the following:


·       Employment contracts

·       Employee handbooks

·       Performance evaluation materials

·       Drafting legal agreements

·       Workplace Investigations

·       Harassment Prevention Training Modules


Resources Used