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Constructive Discharge – Being forced to quit
Word to the wise — You have to have a legal theory underpinning the Quit; something illegal that motivated the employer to mistreat you. That is a key component of the constructive discharge theory — it isn’t enough that you were forced to quit — You have to state an illegal motive on the employer’s part — Words mean things — Heed these words.
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. The Supreme Court Case is available on the web: Pennsylvania State Police v. Nancy Drew Suders (USSC 6/14/04). —- I don’t know whether you can grasp the importance of this case, as a layman, but the case will percolate throughout the courts over time.
“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.
I hope this article will give you a better understanding of the following things:
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 that stem from “Craving closure”. Mental Health – Stress and Depression and Job Problems.
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 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.
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 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.
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.
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.
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.
This requirement is case by case. Every fact counts. It’s all up to the judge as to whether the mistreatment was severe enough.
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.
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.
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.
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.
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).
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.
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).
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.
For some further reading on job stress and depression, check out my article Mental Health – Stress and Depression and Job Problems.
Article written by | Tim Willoughby
Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)
Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.
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