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I am in a terrible work environment. Can I resign and claim constructive discharge?

If you feel as though you are left with no option but to resign from a terrible work environment due to discriminatory or retaliatory treatment, the totality of the circumstances must be considered to determine whether it can be alleged that you were constructively discharged.

In this blog post, we will discuss some of the ways you can go about proving constructive discharge at work.

What is a constructive discharge?

A constructive discharge "occurs when the working conditions deteriorate, resulting from discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer." Poland v. Chertoff, 494 F.3d 1174, 1184–85 (9th Cir. 2007). An objective standard must be applied when analyzing whether evidence is sufficient to support a finding of constructive discharge. The employee need not show that the employer subjectively intended to force the employee to resign. See Nolan, 686 F.2d at 814 n. 17. Thus, the central question is “[d]id working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign? Pennsylvania State Police v. Suders, 542 U.S. 129, 130 (2004).

If an employee can demonstrate constructive discharge, they may be able to recover lost wages if they bring a discrimination or retaliation claim. However, if an employee resigns and their work conditions did not rise to the level of a constructive discharge, they most likely will not be able to recover lost wages stemming from their resignation when bringing a discrimination or retaliation claim.

What Type of Claims Can a Constructive Discharge Arise From?

If an employee proves constructive discharge, then they are treated for purposes of all job discrimination laws as if they had been discharged or terminated. Under federal laws, like Title VII of the Civil Rights Act of 1964, employers are prohibited from discharging employees of protected classes such as race, color, religion, sex, national origin, age and disability. However, if the employee resigns as the result of nondiscriminatory actions on the part of the employer, no constructive discharge under federal laws will be found.

In a Title VII retaliation claim, constructive discharge occurs when an employer intentionally creates, or knowingly permits, discriminatory conditions so intolerable that they effectively force an employee to resign. Mosakowski v. PSS World Medical, Inc., 329 F. Supp. 2d 1112 (D. Ariz. 2003).

A constructive discharge claim may arise out of a retaliation claim under the Family and Medical Leave Act. (FMLA). In Wright, the court found that “constructive discharge is one form of FMLA retaliation, and it can take place when working conditions become objectively unbearable from the viewpoint of a reasonable employee.” Wright v. Illinois Department of Children & Family Services, 798 F.3d 513, 527 (7th Cir. 2015).

A constructive discharge claim may also arise out of a retaliation claim under the Equal Pay Act. In Hutchins, the court found that “under the Equal Pay Act an employee may recover for an actual or constructive discharge only when it is in retaliation for the employee's filing of a complaint or participating in other proceedings under the Act.” Hutchins v. Intl. Broth. of Teamsters, 177 F.3d 1076, 1082 (8th Cir. 1999).

Further, a constructive discharge claim may arise out of state law claims such as whistleblower protection laws and worker compensation laws. See Walters v. Maricopa County, 990 P.2d 677, 682 (Ariz. Ct. App. 1999) (finding whistleblower retaliation under A.R.S. § 23-1501(A)(3)(c)(ii) is found if an employee is discharged for filing a whistleblower complaint); see also Palermo v. Tension Envelope Corp., 959 S.W.2d 825 (Mo. App. E. Dist. 1997) (finding that retaliatory discharge under workers' compensation law may take the form of constructive discharge, and employer constructively discharges claimant when an employer deliberately renders claimant's working conditions intolerable and, thus, forces her to quit).

Courts have found that an employee was constructively discharged in situations where:

· an employee was physically threatened on one occasion, harassed over the next two weeks, and not given sufficient work instructions to perform his job. Ford v. Alfaro, 785 F.2d 835, 841–42 (9th Cir.1986),

· an employee quits within hours of beginning his job after his employer subjected him to three racial insults and said "You'd stay if you weren't a sissy. If you were a man, you'd stay." Bailey v. Binyon, 583 F.Supp. 923, 924–25, 928–34 (N.D.Ill.1984),

· an employee was subjected to frequent incidents of sexual harassment over a two-month period, despite the fact that the company's president called the employee to ask her to return to work. Robson v. Eva's Super Market, Inc., 538 F.Supp. 857, 859–60, 862 (N.D.Ohio 1982),

· an employee was subjected to four incidents of harassment over a nine-month period, including (1) a meeting in which the employee cried because of her superior's extensive questions about her intention to have a career and a family and (2) a choice between a job transfer and resignation. Goss v. Exxon Off. Sys. Co., 747 F.2d 885, 888–89 (3d. Cir. 1984),

· an employee was transferred to a new position with less responsibility, that he stated that his working conditions were satisfactory and that he resigned in order to take a job with another employer. Wagner v. Sanders Assocs., Inc., 638 F.Supp. 742, 745 (C.D.Cal.1986),

· an employee was subjected to incidents of differential treatment over a period of two years. Wakefield v. NLRB, 779 F.2d 1437, 1439 (9th Cir.1986);

· an employee was subjected to four incidents of differential treatment over a period of two years was sufficient to create a genuine issue of fact for trial. Nolan v. Cleland, 686 F.2d 806, 813–14 (9th Cir. 1982),

· an employer conspired to create trumped-up charges of inadequate job performance against an employee and subjected her to abusive treatment and harassment for several days upon her return to work after returning from a honeymoon. Watson v. Nationwide Ins. Co., 823 F.2d 360, 361–62 (9th Cir. 1987).

What is Needed to Support Constructive Discharge in a Sexual Harassment Situation?

To establish “constructive discharge,” a plaintiff alleging sexual harassment must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. The court “set[s] the bar high for a claim of constructive discharge because federal antidiscrimination policies are better served when the employee and employer attack discrimination within their existing employment relationship, rather than when the employee walks away and then later litigates whether his employment situation was intolerable.” Poland v. Chertoff, 494 F.3d 1174, 1184–85 (9th Cir. 2007).

To prove constructive discharge, an employee needs to show evidence of aggravating factors such as a continuous pattern of discriminatory treatment. Nolan v. Cleland, 686 F.2d 806, 813 (9th Circ. 1987). A “single isolated instance of employment discrimination is insufficient as a matter of law to support a finding of constructive discharge.” Id.

If an official act, such as a discharge, demotion, or undesirable reassignment, does not underlie the constructive discharge, an employer may assert the Ellerth/Faragher affirmative defense. Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2349 (2004). Under the Ellerth/Faragher affirmative defense, an employer must show that it had in place an effective policy for dealing with sexual harassment complaints and that the employee unreasonably failed to take advantage of the measures provided by the employer. 2347. However, an employer may not use the Ellerth/Faragher defense if the employee quits “in reasonable response to an adverse action officially changing her employment status or situation, e.g., a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. Id. at 2347. Under Ellerth/Faragher defense, an employee who does not allege an official act as a basis for the constructive discharge claim has a duty to mitigate harm. Id. at 2357. The employer bears the burden to allege and prove that the employee failed to mitigate damages. Id. at 2357.


If you believe that you have been discriminated or retaliated against and constructively discharged or are wondering if your resignation rises to the level of constructive discharge, contact our firm to speak with an employment attorney today.


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