Constructive Discharge

Being forced to quit a job

Sometimes a resignation is not really voluntary choice. Sometimes we are forced to quit jobs due to mistreatment. Was our resignation really a “firing without good cause” through being “forced to quit”?

UPDATE: On June 14, 2004 the United States Supreme Court issued a landmark decision setting some new standards for the law of “Constructive Discharge” in Federal Title VII Employment Discrimination cases. It’s going to take me a little while to analyze this case and update this constructive discharge article. The Supreme Court Case is available on the web: Pennsylvania State Police v. Nancy Drew Suders (USSC 6/14/04).

(The following is the remainder of my original Constructive Discharge article, that has not been updated).

“Constructive Discharge” is a legal term meaning that you actually quit your job, but if you meet certain standards then the legal system might treat your resignation as if you were actually fired without good cause. Being fired without good cause is an Adverse Employment Action required by many laws before you have a case, but a truly voluntary quit is not.

Persons who voluntarily quit might not have strong legal rights, but persons who are “constructively discharged” might have strong legal rights in some circumstances. But be very very careful before you say “I quit” - get legal advice first.

Quick introduction
I hope this article will give you a better understanding of the following things:

• If you have already quit your job and started calling lawyers, you will understand more about why the lawyers might have been asking you certain questions and why the lawyers might have been somewhat unenthusiastic about your potential case.

• The law of constructive discharge is complex and full of risks for your potential case.

• When you quit your job, you hand the employer legal arguments to make against you that could harm your legal position or even destroy your potential case. A lawyer’s advice can help reduce the risk of harm to your case, but the risk cannot be eliminated.

• WHY the employer is trying to force you to quit is a critical question to answer. The WHY will help dictate what strategy is best for you to follow in resolving your legal situation. There may be several reasons WHY these bad things are happening to you, and some reasons may be unknown to you but suspected by your lawyer.

• Employers might try to force you to quit by mistreating you in any number of little or big ways. Each case is unique.

• In most instances where the employer is trying to force you to quit, your rights under the Discrimination or Retaliation or Wrongful Termination or Contract laws are better-protected if you make proper and effective complaints about the mistreatment and give the employer a chance to fix the problem or stop the mistreatment.

There is no single answer to the question: “What should I do if my employer is trying to force me to quit?” There may be several things you could or should be doing, all at the same time. Perhaps the best place to start is to get some legal advice by meeting with a lawyer of your choosing. See my article explaining Why general legal info is not a substitute for legal advice. Get legal advice, please, if you feel you are being forced to quit. The lawyer will be able to design a strategy to try to make it more likely that you will get the result you want in your unique circumstances.

NOTE: Be aware of the phenomenon of “Craving Closure”. People often quit their jobs when faced with seemingly insurmountable job problems, or high stress, or depression, rather than develop a more productive and rational means of resolving their problem. They “Crave Closure” by feeling a powerful urge to quit or be fired, because they cannot see a better way to relieve the pressure or end their job-related suffering. I see such problems regularly, and I’ve written an article to give you some additional info based on my experience, including a discussion of the problems stem from “Craving closure”. Mental Health - Stress and Depression and Job Problems.

- - - If you have already quit your job - - -
The discussion below will introduce you to some of the legal problems that will flow from your decision to resign.

- - - If you have not resigned yet - - -
The discussion below will raise your awareness of some major traps in the law.

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Many legal situations and legal rights could be affected by the law of constructive discharge. This discussion focuses on some very common circumstances, which are cases of ongoing mistreatment where an employee has quit his job and started calling lawyers about suing the employer under the Discrimination or Retaliation or Wrongful Termination or Contract laws.

NOTE: This discussion focuses on the most common type of constructive discharge, where people eventually quit their jobs due to ongoing or repeated unfair treatment toward them. The article does not go into detail about the “exceptions” in the law for less common types of constructive discharge, where sometimes the law allows you to quit based on single incidents of very bad conduct toward you, or where the law sometimes will forgive you for not making proper complaints before you quit. If you quit your job, expect to have more trouble finding a lawyer and prosecuting your case. In any event, it’s best to talk to a lawyer before you say “I quit.”

If you are being mistreated at work, lawyers can often help you resolve this problem in an acceptable fashion or help you strengthen your legal position as the situation deteriorates. If you need to sue someone or take other action, the lawyer’s advice may have helped you have a stronger case when the time comes.

In order to get some justice over a “constructive discharge” you must have an underlying legal claim to make

In other words, it’s not enough that the employer forced you to quit. You have to tell the judge WHY it was illegal or wrongful for the employer to be forcing you to quit in the first place. Here’s how you do that: You sue the employer (or file an EEOC charge) based on some legal theory such as those I have talked about in the following articles (there are other theories available as well which I may not have covered yet): Wrongful Termination, Retaliation, Discrimination, and (for those with contracts) a claim for breach of Contract may be used. The “constructive discharge” is the “Adverse Employment Action” required by the underlying legal claim.

The “Constructive Discharge” can be the “Adverse Employment Action” required by the underlying legal theory

Generally, before you have a case of any type under any legal theory, the employer must do a harm to you that the law will recognize. Some harms are so insignificant that the law will not recognize them. Serious harms, in the context of employment law, are called “Adverse Employment Actions.” Usually, an “Adverse Employment Action” consists of a termination, or a demotion, or some other serious thing that hurts your working conditions sufficiently enough to impress the judge. We’re going to talk about the “Adverse Employment Action” known as “constructive discharge.”

If your resignation was truly “voluntary,” then you were not “Constructively Discharged” and your resignation was not an “Adverse Employment Action” by the employer against you.

If your resignation was truly voluntary and not under pressure and not due to mistreatment, you’ll have problems suing over the loss of your job. A “voluntary resignation” is not an “Adverse Employment Action” - you’re not unemployed due to the employer’s bad conduct toward you.

When you resign and then sue for the loss of your job, the employer will try to prove that your resignation was truly voluntary. Your case will be dismissed by the judge if your resignation was truly voluntary.

But a resignation due to mistreatment might qualify as a “Constructive Discharge” and be an “Adverse Employment Action.”

The judge will not dismiss your case if the resignation was involuntary under the standards of the “constructive discharge” doctrine. The judge will treat your involuntary resignation (that meets the “constructive discharge” standards) as if you were “fired without good cause” - - - When you have been “fired without good cause,” you have suffered an “Adverse Employment Action.” If the employer’s motive for firing you was illegal or wrongful, you can get some justice. That’s what the “constructive discharge” doctrine does for you.

The “constructive discharge” doctrine comes up regularly in employment law. Typically, it’s a case where the employee quit without getting legal advice first. As a general rule, it is unwise to quit your job before you get legal advice. If you quit before the time is right, you could destroy or severely weaken whatever case you may have had.

Most of the time, courts require you to meet certain standards if you want to have your resignation treated as if you were fired without good cause; that is, treated as a “Constructive Discharge”:

• Mistreatment toward you occurs at work, within the power of the employer to stop. (You will ultimately have to prove that the mistreatment was caused by the employer’s plan to force you to quit, or that the employer refused to stop others from mistreating you because the employer wanted you to quit)

  The mistreatment can take any form. I cannot attempt to list all the possible ways in which you might be mistreated. But I can list a few types of mistreatment that I commonly see:

  REMEMBER: The following bad things might or might not have happened to you. Each case is unique. All bad things will be thrown into the pot together - each fact counts - and the judge will be asked to decide if, taken all together, these things are bad enough to give you legal rights.

  • Rude or disrespectlful treatment toward you by your superiors
  • Unreasonable denial of the usual fair treatment given to others
  • Unfair writeups about petty things
  • Bad performance reviews after a history of good performance
  • Denial of promotions or raises or transfers or favorable assignments
  • Unreasonable raising of the quota, or unfair criticism for failure to meet quota
  • Insert your own examples of types of mistreatment here. It can be any type, as long as the judge will agree with you that this type of bad thing was mistreatment of you by your employer

  At the earliest signs of mistreatment, please be aware that the employer’s managers might be commencing a form of Retaliation against you for something. If you have a Contract or Non-Compete Agreement the employer may be trying to force you to quit because of the effect on those agreements. Consider seeing a lawyer who can help you as you begin to deal with the challenges ahead. As the mistreatment unfolds, your legal rights are getting stronger. If you make a mistake during this process, you could seriously undermine your developing legal claim.

• The mistreatment is so bad that a reasonable person would rather quit than be subjected to it.

  This requirement is case by case. Every fact counts. It’s all up to the judge as to whether the mistreatment was severe enough.

• It’s usually required that you complain in a reasonable manner to upper management, or to human resources, or to some other designated manager at work, and give the employer a chance to stop the mistreatment before you quit.

  I have an article about Making Complaints which offers some tips and traps. Your lawyer will work with you on how to make a proper and effective complaint about the mistreatment. During the complaint process, what you say - and also what you do not say - will be used against you later on in court if you need to sue over the mistreatment.

• The employer failed to fix the problem, and does not have a legally sufficient excuse for its failure to fix the problem.

  Employers who care about preventing legal claims will take steps to try to address your concerns. Employers whose primary motivation is to build a defense against your anticipated lawsuit will make it look like they are trying to address your concerns, but nothing much will change as far as you can tell.

• The mistreatment continued after you made a proper complaint.

  This is a very tricky phase of your developing case. It’s a big game. The employer’s goal is to get you to quit, without giving you enough evidence to win your case, without giving you enough evidence of an evil motive and a pattern showing a plan to drive you out. Once you make a complaint, the employer will probably take some steps to address the precise problem you complained of. But the employer might not do anything to fix the real issue: Some manager is trying to force you to quit.

  The manager will now change tactics. If he was writing you up unfairly for minor workplace errors, he might stop doing that for awhile. Instead, he’ll write you up for minor tardies that no one cared about previously. Or he might just start being rude to you, or denying your requests for days off, and on and on and on - the pattern of mistreatment will continue, but the tactics will change. The employer (who knows the law because he’s already talked to his lawyer) will probably be very careful not to ever do anything to you that is clearly a single really evil act. The most he will do is a pattern of little acts. The employer knows that you will have a tough time getting a judge to agree that these little things would cause a reasonable person to quit their job and choose unemployment.

• You resigned due to the continuing mistreatment, and a reasonable person would have resigned.

  TRAP #1: The decision to resign is a critical decision. If you make this decision without a lawyer agreeing with your decision, then you are running a much higher risk of creating a major problem for your potential case.

  TRAP #2: Some courts seem to want to impose a new requirement that you make additional complaints about the continuing mistreatment and give the employer yet another chance to fix the problem before you resign. Not all courts will impose this extra complaint requirement. And, the circumstances of your unique case will probably govern whether any court wants to impose the extra complaint requirement. The court might be influenced by the precise nature of the continuing mistreatment, etc. Do yourself a favor and get some legal advice before you actually quit or give notice.

You will probably have to prove the employer “intended” to drive you out through the mistreatment. But the court will probably allow you to infer the “intent” from the circumstances.

The law is somewhat unsettled on this point, but courts like to see evidence that the employer intended to drive you out. How do you prove that when no one will admit that they intended to make you quit?

You have to get the court to “infer” the intent from the circumstances. It should be enough that you have proven that the employer was mistreating you and unreasonably failed or refused to stop; we can infer that the employer intended to drive you out because the employer failed or refused to correct the problem, but for some courts that may not be enough. It’s all case by case.

In May 2002, the Eighth Circuit Court of Appeals in St. Louis indicated that a trial court should be willing to infer the required intent to force you out, by using the “reasonably foreseeable” standard: A plaintiff may satisfy this intent requirement by showing the intolerable situation created by the employer was such that the employer could reasonably foresee that the employee would quit. Quoted from Tadlock v. Powell, 8th Circuit, May 30, 2002 (PDF file - opens in new window).

In April 2002, the Eighth Circuit confirmed that it will require employees to make a reasonable effort to complain about the ongoing unfair treatment before resigning, as part of the constructive discharge doctrine, in the case of Jones v. Fitzgerald 285 F.3d 705 (8th Circuit 2002).

Here’s a brief presentation of a typical scenario that will play
out in court when an employee quits, especially
when the resignation occurred without legal advice

• The employee is getting mistreated and quits without legal advice.

• The employee starts calling lawyers: “I quit my job and I want to sue ‘em.”

• The employee finds a lawyer who thinks he can get the court to treat this resignation as a “constructive discharge,” perhaps making use of some special exceptions that the law permits on occasion.

• The employee files a lawsuit based on Wrongful Termination, Retaliation, Discrimination, or even breach of Contract.

  NOTE: The underlying legal claim is not “constructive discharge.” The underlying legal claim is a wrongful termination theory, etc, where the “Adverse Employment Action” consists of the “constructive discharge.”

• In the lawsuit, the employee argues that he was forced to quit due to serious mistreatment by the employer, so serious that a reasonable person would quit rather than be subjected to it. If the employee made complaints about the mistreatment, he talks about them in the lawsuit. If he did not make complaints, he talks about certain exceptions that the law might permit.

• The employer rebuts the case. The employer argues that #1 - No proper complaint was ever made prior to quitting, and #2 No exception applies.

• The employee responds that he did in fact make a complaint (but it’s usually oral, and usually doesn’t say enough of the right things, and usually was not made to the most appropriate member of management).

  NOTE: See my article on Making Complaints for some tips.

• The employer denies that an oral complaint was made, or denies that a complaint was made to a member of management, or denies that the complaint contained the right words. The employer also argues that even if the employee made a proper complaint, the things complained about were petty, unimportant, and that no reasonable person would have quit their job and chosen unemployment over such little things. The employer asks the court to conclude that no proper complaint was made, and that no exception applies, and asks the court to throw out the entire case.

  NOTE: This stage of the case is almost always present. No matter whether you make a complaint or not, and no matter what you complain about, the employer will always ask the judge to conclude that your case should be thrown out. But do those arguments have a snowball’s chance? That depends on the unique facts and circumstances of your case. If you have had a lawyer assisting you all along, then your case may be better-positioned to survive the employer’s challenges.

• Things get very messy, with all of the he-said she-said battles. Both parties spend a lot of money taking depositions. Then the judge makes a ruling. If the judge rules that no proper complaint was made, or that the mistreatment was not serious enough, the case is probably over. Here’s a recent case illustrating this battle, where the Eighth Circuit Court of Appeals concluded that a woman who quit due to sex harassment did not meet the standards for “constructive discharge.” The jury thought she did meet the standards, but the Appeals Court disagreed and reversed the jury verdict. The case is Diana Duncan v. General Motors (PDF file - opens in new window).

Conclusion: see a lawyer before you say “I quit.”

If you quit your job without getting legal advice, you run a higher risk that you will severely weaken or destroy whatever case you might have had. Take another look at the Duncan case I linked to above. Even if you don’t destroy your entire case, you could reduce your ability to collect any meaningful damages if you quit. The amount of damages available is one of the factors that is often important in determining whether you have a worthwhile case.

There are exceptions in the law of constructive discharge I described above, but don’t count on qualifying for an exception. Instead, be careful before you quit - think twice, and then get some legal advice. If you feel in danger at work, consider calling the police. Consider calling in sick or taking some vacation to give you time to talk to a lawyer. But it’s best not to say the magic words “I quit” without talking to a lawyer first.

See also my Retaliation, Wrongful Termination, Discrimination, and Complaints articles.

For some further reading on job stress and depression, check out my article Mental Health - Stress and Depression and Job Problems.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Website (see the directory of lawyers).