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Constructive Dismissal and Wrongful Termination

Constructive dismissal, more commonly known as constructive discharge, is a modified claim of wrongful termination. Wrongful constructive discharge occurs when, instead of firing the employee, the employer wrongfully makes working conditions so intolerable that the employee is forced to resign. As in wrongful termination, the employer must violate the employment contract or public policy by targeting the employee. Continue below to learn more about constructive discharge.

See FindLaw's Wrongful Termination section to learn more.

What Is Constructive Discharge?

Most states recognize the legal concept of constructive discharge, in which an employee quits because the working conditions have become so intolerable that they can no longer work for the employer. Even though the employee voluntarily quit, the employee had no reasonable alternative because of the intolerable working conditions.

The employee's resignation is overlooked for legal purposes because the employment relationship was in effect terminated involuntarily by the employer's conduct. In this situation, the resignation is treated as a firing. If the employer's actions constitute unlawful conduct or a breach of an express or implied employment contract, the employee may have a claim for wrongful constructive discharge.

Elements of a Constructive Discharge Claim

An employee can't simply quit and claim that they were constructively discharged. For example, California requires an employee to prove that:

  1. Their working environment was so unusually adverse that a reasonable employee in their position would have felt compelled to resign, and
  2. The employer either intended to force such resignation or had actual knowledge of the intolerable working conditions.

An employee claiming to have been constructively discharged must show that the conditions giving rise to the resignation were sufficiently extraordinary and egregious to overcome the normal motivation of a competent and reasonable employee to remain on the job.

Generally, a continuing pattern of extraordinary and egregious conduct is required before an employee's resignation will be considered a constructive discharge. A single negative evaluation or other isolated acts don't typically establish intolerable or unusually adverse employment conditions. However, in severe situations, a single act, such as a crime of violence by the employer against an employee or the employer's requirement that an employee commit a crime, may be enough to constitute unusually adverse conditions.

In addressing whether an employer's conduct amounts to sufficiently intolerable or egregious working conditions to permit constructive discharge, courts focus on factors including:

  1. Whether the employee was requested or required to participate in illegal activity,
  2. Whether the employer duly acknowledged or investigated the employee's complaints,
  3. The nature of the employer's illegal conduct, and
  4. The passage of time between the allegedly illegal conduct and the employee's resignation.

Reasonable Person Standard

It's not enough for the employee to subjectively believe their working conditions are intolerable. Courts instead look at whether a reasonable person would find the conditions to be unusually egregious and adverse. If a reasonable person working in the employee's position wouldn't find the conditions intolerable, the employee's resignation will be treated as a voluntary resignation by the employee, even if the employee believes that they can't work under the conditions imposed by the employer.

Employer Knowledge

In general, in order to prove that the employer forced the employee to resign, an employee must show that the employer either intended to create or maintain intolerable working conditions or that the employer had knowledge of such conditions. If an employer should have known about the intolerable conditions, but didn't, a constructive discharge generally wouldn't occur.

Employees generally must notify management or someone in a position of authority of the conditions. In this way, the employer has an opportunity to correct the situation. If the employee doesn't inform the employer, and the employer hasn't independently learned of the intolerable working conditions, the employee generally won't be able to prove a constructive discharge claim.


Employees are typically presumed to be employed in an at-will employment relationship. This means that the employee can be terminated at any time and with or without cause. Generally, the law doesn't require that employers treat their employees fairly or provide a stress-free environment. Instead, employers are required not to act in a discriminatory manner or in an otherwise unlawful manner. Absent improper or unlawful conduct or breach of an employment contract on the part of an employer, courts generally won't allow employees to bring constructive discharge claims.

Learn More About Constructive Discharge Claims: Talk to a Lawyer Today

If you need help in understanding constructive discharge law, or legal assistance in suing your employer for such a discharge, the help of a legal professional can be very useful. With the help of such attorneys, you'll likely gain clarity on your rights, and you'll likely also take the most appropriate actions. Contact a wrongful termination lawyer to discuss your situation and learn how they can help.

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