Constructive Discharge: Resignation Under Intolerable Conditions

Sometimes, it is easy to identify unlawful employment practices, such as discrimination on the basis of a protected class like race or religion; retaliation for undertaking a protected activity like taking leave under the Family and Medical Leave Act; or even wrongful termination where an employer gives a false reason for terminating an employee. However, an employer can still be liable to an employee if it forced that employee to resign. This legal doctrine is known as “constructive discharge,” and it is brought about when an employer tries to force out an employee while making it appear that it was the employee’s decision. Constructive discharge is often the end result of some form of retaliation, frequently presented as the employee’s only option, with the threat of termination looming if the employee does not comply.

Constructive discharge has two requirements. First, the employer must take a deliberate action that makes working conditions so intolerable that a reasonable person would feel compelled to resign. This could include changing expectations so that the employee never seems to meet their goals, isolation from colleagues, exclusion from assignments that they normally would have taken on, and many others.  The second requirement is that the employee actually did resign because the company made the working conditions so intolerable. This can include whether the employee resigns because they can no longer cope with the conditions they are being forced to work under or if the employer coerces the employee into resigning.  

However, employees should be aware that even if they resign because of intolerable conditions or are coerced into doing so by their employer, they should document the actual reason for their departure from the company in their resignation letter. Constructive discharge can be harder to prove if the employee submits a generic resignation letter that does not document the true reason for resigning. Employers in receipt of generic resignation letters that do not provide detail can use those letters to refute claims of constructive discharge. Therefore, if an employee believes that they are being constructively discharged and prepares to resign, they should document exactly why they are resigning, in detail, when they prepare a resignation letter.