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Employment Law 101 is a series designed to give you ideas and help you spot legal issues. It is not a substitute for a good employment lawyer or thorough research. For the most current developments in employment law court cases, try Employment Law Memo - First in Employment Law.

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« Discharge in violation of public policy #8 | Main | Claims against employees #10 »

Constructive discharge #9
by Ross Runkel at LawMemo

"Constructive discharge" occurs when an employer makes the conditions of work so intolerable that the employee "quits." For example, the employer might want the employee to leave, without actually saying "you're fired."

  • Constructive discharge is not an independent claim all by itself. It is used to convert what might look like a "quit" by the employee into a discharge by the employer.
  • Example: The employer sexually harasses Jane. The harassment is severe enough or pervasive enough (or both) that it alters Jane's conditions of employment and violates Title VII. Then Jane "quits" because of the harassment.
  • Is that a constructive discharge? In order for Jane's "quit" to be a constructive discharge, the harassment must be so severe or pervasive (or both) that a reasonable employee in her situation would quit work rather than stay. In other words, the harassment has to be worse than the minimum required for a Title VII violation.
  • Effect: If this was a constructive discharge, then Jane has a claim for discriminatory discharge in violation of Title VII in addition to her claim for sexual harassment. Therefore, she will be eligible for greater remedies such as back pay.
  • If the court decides this was not a constructive discharge, Jane has a remedy for the harassment but not for being illegally fired.

The constructive discharge idea is not limited to sexual harassment cases. It can be used in cases involving

  • harassment because of religion, race, disability, etc.
  • retaliation.
  • discharge in violation of public policy.
  • discharge because the employee engaged in union activity.
  • and the list goes on.

Suggestion to employees: Talk to a lawyer as soon as you can, and that means before you quit.

Coming next: Claims against employees: Employment Law 101 : #10


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