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What is a Constructive Discharge?

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  • Written By: Mary McMahon
  • Edited By: O. Wallace
  • Last Modified Date: 08 November 2016
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A constructive discharge is a situation in which an employee quits as a result of intolerable working conditions. If certain procedures are followed, the employee can argue that even though he or she appeared to quit voluntarily, leaving the position amounted to an adverse employment action equivalent to being fired without cause. On these grounds, the employee may be entitled to legal remedies such as compensation.

In a simple example of how constructive discharge might work, an employee could experience repeated sexual harassment which makes the workplace unsafe and uncomfortable. Eventually, this could drive the employee to quit rather than continue working because the work environment is so unpleasant. The employee could take the case to court, arguing that the employer was legally required to address the sexual harassment so that the employee could continue working.

Several standards must be met for a case to be genuinely considered one of constructive discharge. The first is that any reasonable person would have quit in the same circumstances. Some examples of circumstances which could force reasonable people to quit include repeated humiliation in the workplace, punitive demotions or transfers, hostility in the workplace, discrimination such as routine racist comments, or sexual harassment. By contrast, someone who quits because of unhappiness about desk location would probably not be entitled to compensation.

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Another standard which must be met is a demonstration that the employee followed procedure. The employee should have identified the intolerable situation verbally and in writing. In addition, the employer must have two weeks to remedy the situation. If the employee felt that the situation was so unpleasant that work was impossible, she or he would have been entitled to paid time off while the employer addressed the situation. Likewise, the employee must be able to demonstrate that the situation emerged recently and was either instigated or tolerated by the employer.

If an employee quit because working conditions were intolerable and the employer refused to correct them, this is non-voluntary choice. While the employee may have filed the resignation, this is because the employee felt that there was no other option. Someone forced to quit an intolerable workplace would be considered for a constructive discharge case and the employer could face penalties. People who are considering quitting because of unpleasant working conditions should discuss the situation with a lawyer to make sure that they follow procedures so that if they do need to quit and take the case to court, the groundwork for a constructive discharge case will have been laid.

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anon276422
Post 2

I was at my current job for one month and a coworker started an argument with me. I calmly asked her what I did to make her so angry and if she had a problem she should address me about it. She stormed off and went to H.R. crying.

My manager called me into his office as if I were the trouble maker. I was shocked. She tried to get me fired. When I first started there, they all talked about the supervisor. I didn't join in and decided it was probably best not to eat lunch with them. Then I found out one coworker got a $5.000 bonus to bring our manager in to the company. Then the

girls grouped together with my supervisor and they all have targeted me.

I have endured humiliation, alienation and being yelled at by coworkers for 2 1/2 years. Now my manager is starting in on it. I am so afraid, but jobs are scarce and I am just grateful to have one. I attend birthday celebrations, sign the card and that's it. I plan to leave eventually but all I can do is attempt to ignore them, say good morning, keep communication to a minimum, discuss work situations only, and plan my escape.

The thing is, I'm horrified of using any of these people as references. The women in H.R. have been a little rude to me lately also. I am scared.

gnr
Post 1

Unfortunately, I don't think a lot of employees who are suffering a hostile work environment are aware that they can do this to protect themselves. The HR department should give you all the information, but if your employer is not cooperating in rectifying the situation, you'll have to do your homework and find out just how to do this correctly. I'd start with your state's labor department.

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