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What is constructive discharge?

Quitting your job can make it much harder for you to pursue an employment discrimination or retaliation claim. Dealing with these issues at work can involve a lot of unpleasantness. However, consulting with an attorney before taking any definitive steps can help you protect your claim effectively.

The reason quitting can harm your case is that, typically, a discrimination or retaliation claim requires you to show the employer took adverse action against you. If you quit of your own free will, you may have a problem showing the employer took action against you.

Constructive discharge

In some cases, you may have grounds to claim constructive discharge. This term denotes a situation where, even though you took the final step of quitting, the law considers that the employer factually forced you to do so.

The situation is so bad you have no choice but to quit

If you claim constructive discharge, you will need to prove it in addition to all the elements of an ordinary retaliation or discrimination case. Courts will generally not find constructive discharge based on a situation that is merely unpleasant and does not rise beyond normal types of retaliation. You may suffer from rudeness, exclusion and demotions and your situation may still not be bad enough to make your decision to quit less than voluntary.

The basic definition of constructive discharge is that the employer creates conditions that a reasonable employee would not be able to tolerate. If you think this sounds vague, you are not wrong. Previous cases that shed some light on the courts' thinking in this regard include decisions that find constructive discharge when an employer humiliates or physically threatens an employee, when the employer gives a choice between breaking the law and losing one's job and when the employer engages in very blatant sexual harassment.

Ordinary levels of unpleasantness, discrimination or retaliation do not qualify

Generally, courts do not tend to find constructive discharge based on negative performance reviews, discrimination or unequal pay, although these can form the basis for a regular discrimination or retaliation suit. Proving a constructive discharge claim can pose a difficult challenge, so it is best to speak with your lawyer before quitting or going to HR.

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