Constructive Discharge Claim: What It is, How it Works

What Is a Constructive Discharge Claim?

A constructive discharge claim is a lawsuit filed by an employee who has quit a job because the conditions under which they were working had become intolerable, primarily on purpose with the goal of forcing the employee to leave. Constructive discharge claims are said to begin accruing on the date of the last adverse action of the employer.

Understanding a Constructive Discharge Claim

In order for a constructive discharge claim to be considered, the claim must demonstrate that the employer’s actions allowed it to indirectly punish (such as through hour reductions) the employee when it could not directly punish (such as by verbally accosting the employee) the employee until they quit.

During the course of a claims investigation, the focus is on the conduct of the employer more so than it is on the conduct of the employee. Because the employer may not be able to solve problems surrounding a claim after an extended time period, constructive discharge claims must be filed within a certain time period after an employer’s actions occur.

The time period typically begins on the date that the employer is said to have acted improperly, though in some cases the employee may have until the date of quitting before the time period begins. The employee may be required to try to resolve the issue before a claim is made.

As an example, consider if an employee indicates that they have been passed over for a promotion for a reason other than performance, such as gender or race. The employee’s manager, after hearing of the employee’s complaint, places the employee on leave because of non-performance despite the employee recently receiving a positive performance review.

The employee may file a constructive discharge claim indicating that conditions at the office deteriorated after being passed over for the promotion and that the employer indeed retaliated. In this case, the employer may be determined to have acted improperly.

Constructive Discharge Scenarios

The following are some scenarios that could qualify as leading to a constructive discharge.

1. Employee was the victim of sexual harassment by a supervisor or boss
2. Employee was the victim of sexual harassment by a co-worker and complained to management, but management failed to address the problem, which then continued
3. Employee was treated badly at work because of their age, sex, race, national origin, religious beliefs, or disability
4. Employee made a reasonable complaint that they believed they were being treated badly because of age, sex, race, etc., and management responded ineffectively and the environment became even more hostile. This is known as an unlawful retaliation claim.
5. Employee took leave under FMLA, sought overtime to which they believed they were entitled, sought a reasonable accommodation under ADA, or filed a workers' compensation claim, and thereafter was retaliated against by the employer
6. Employee made a whistleblower complaint and was thereafter subjected to a hostile work atmosphere