Home » Blog » Constructive Discharge

Employees sometimes feel that they have no choice but to quit a job because of bad treatment.  In an appropriate situation, the legal concept of “constructive discharge” can be the equivalent of an employee being fired.  When an employee is being illegally harrassed or discriminated against on a job but has not been officially discharged by the employer, it is always a tough decision for the employee as to whether they can quit in face of illegal discrimination or harrassment or whether they must continue to put up with it and be fired in order to have a right to sue their employer for wrongful discharge.  The test is not one which has any definite guide lines.  The law says that an employee that is being mistreated to the point that no reasonable employee would continue to endure it may resign and have it treated in the law as a termination by the employer.  The problem is that the reaction of the employee to the treatment will not be judged by the judge or jury by the employee’s subjective standards alone.  The actions and reactions of the employee and the actions of the employer will be judged by a “reasonable employee rule”.  Therein is the problem, in that everyone thinks they are reasonable when we all know that some people are just overly sensitive and difficult to get along with.  Also, some people are just plain tough and can take almost any level of mistreatment and not be too bothered by it.  And, the employee can be fairly sure that the people that make it onto the jury to judge his/her situation will not be anyone who has ever been subjected to a situation exactly like their situation.  Therefore, to be safe, an employee will probably need to endure the treatment beyond what they would normally allow in order to be safe in the assumption that a jury might agree with them that the treatment was unbearable by any reasonable employee.   “Cry babies” and “pea princesses” will get little sympathy from a judge or jury and will be handily shown the courthouse door.  Any physical abuse will usually be judged as sufficient cause for a constructive discharge.  Many of the cases allow an employer to use occasional harsh language or cursing and that usually boils down to what is the norm in the type of job or environment of the employee.