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If you quit your job, but not on your own terms, you may be able to make out a claim for “constructive discharge” (or “constructive termination”), but only if you left your job because your working conditions were so intolerable that no reasonable person would have been expected to stay.
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Constructive discharge is a form of wrongful termination. Most employment in the U.S. is “at will” employment. This means that, as an employee, you have the right to quit your job at any time, for any reason. Likewise, your employer can terminate your employment at any time, for any reason that does not violate the law. If you are terminated for an unlawful reason (e.g., because of your age or your race), then you may have a claim for “wrongful discharge.” If you are not officially terminated, but instead are forced to quit because your working environment has become intolerable, then you may have a claim for “constructive discharge.” In that instance, your “constructive” termination will be treated as the legal equivalent of an “actual” termination.  In order to establish a claim for constructive discharge, you will have to prove that your working conditions were objectively intolerable and that your employer created the intolerable conditions or knew of the intolerable situation and did nothing to remedy it. Generally, this is a high bar to clear.

Whether your working conditions were, in fact, “intolerable,” is assessed according to an objective, reasonable person standard. That is, you must prove that the situation was so bad that no reasonable person would continue working under those conditions. For instance, depending on the specific facts, any of the following might support a claim of constructive discharge:

• Discrimination and/or harassment based on your age, race, gender, national origin, disability or some other characteristic protected by law;
• Unhealthy and/or unsafe working conditions;
• Acts of retaliation by your employer after you complain about your working conditions or exercise your rights as an employee.

In general, there must be some unlawful conduct that fuels the intolerable conditions and underlies your resignation. Remember, if you are an at-will employee, you can be terminated at any time, for any reason that does not violate the law. So, for example, if you quit your job because your supervisor is rude and gruff to everyone and fosters a stressful working environment, your claim for constructive discharge is likely to fail because your employer is not legally obligated to provide you with a nice supervisor or stress-free working conditions.

Occasionally, a single incident—e.g., a physical or sexual assault, or a demotion that results in an immediate and significant pay cut—is so egregious that, by itself, it creates an intolerable working environment. In most instances, though, an isolated comment or incident will not be enough to pass the “reasonable person” test. Something more than “garden variety” discrimination, harassment or other unlawful conduct will be required to prove that you had no choice but to quit. You will have to show a pattern of outrageous and egregious conduct to establish that no reasonable person would have been able to endure the working conditions to which you were subjected.

The spread of COVID-19 has changed how we work. This new “normal” requires employers and employees to adapt to an environment in flux, and opens the door to situations that may give rise to a claim of constructive discharge.
For example:
• An Asian employee who quits because he is subjected to discrimination, derogatory comments or other harassment about the “China” virus may be able to make out a claim for constructive discharge based on a violation of federal and/or state anti discrimination laws.
• An employee who quits her job because her employer refuses to enforce social distancing measures, or provide protective equipment or hand sanitizing stations, or otherwise take steps to protect employees from COVID-19, may have a claim for constructive discharge based on the employer’s failure to provide a safe workplace.
• When stay-at-home orders are lifted and employees begin returning to the workplace, a high-risk employee, who has been working productively from home, may have a claim for constructive discharge if her employer refuses to accommodate her request to work remotely for an extended period of time (e.g., until additional safety measures can be implemented) or some other request for a reasonable accommodation.
• An employer that retaliates against an employee for exercising his or her legal rights (e.g., for reporting unsafe working conditions or taking family leave under the Families First Coronavirus Response Act), may create intolerable working conditions that support a claim for constructive discharge. An act of retaliation is any conduct that would discourage an employee from exercising his or her rights. This might include a campaign of harassment; negative performance reviews; a demotion; a shift change; cutting the employee’s hours; stripping the employee of responsibilities or a title; or transferring the employee to a new, less desirable worksite.

There is one more hurdle you must overcome if you are going to prevail on a constructive discharge claim. You must show that your employer created the intolerable conditions or knew of the conditions and did nothing about it. To put it another way, in most instances you have to give your employer a reasonable opportunity to remedy the situation before you resign your employment and take legal action. So, for example, if your employer has a formal grievance policy, you should follow the complaint procedure outlined in the policy. Even in the absence of a formal, written policy, you must make your employer aware of the situation and give your employer an opportunity to fix it. To ensure that your employer has actual knowledge of the situation, put your complaint in writing and keep a record of all related communications with your employer. Note: If your employer “fixes” the problem in a way that effectively punishes you for speaking up, this is retaliation, not a remedy.

Federal and state laws bestow upon employees the right to a safe workplace and a workplace free from unlawful harassment, discrimination and retaliation. If your employer fails to meet these legal obligations, you may have grounds for a constructive discharge claim. However, proving that your working conditions were so intolerable that you had no choice but to quit – and any reasonable employee would have done the same—is not an easy task. You are well advised to reach out to an experienced employment lawyer before you quit your job or take any other work-related action.

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