What Is Constructive Discharge?

Intolerable conditions may yield claims for constructive discharge.

When a person quits her job rather than put up with sexual harassment, she may have a claim for constructive discharge. Most courts say that if a supervisor deliberately makes working conditions so intolerable that a reasonable person would be forced to resign, then that person will be treated as if she had been fired, and she can bring an action against the company.

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A supervisor was constructively discharged when the company first transferred the harasser but then reassigned him to work with her, and he assaulted her.


A company took prompt action against the harasser that stopped the harassment, so the victim was not constructively discharged even though she still ran into the harasser at work.

A constructive discharge occurs when your employer deliberately imposes working conditions that are so discriminatory and intolerable that a reasonable person would quit, even if the employer did not specifically intend to force you to resign. In deciding whether the employer's actions were deliberate, most courts look to the effect of the employer's actions rather than the employer's motive. A few courts require proof that the employer intended to make you quit, but the vast majority of courts take the less strict view.

The conduct that leads to a constructive discharge must actually be intolerable. Otherwise, you are expected to stay on the job and fight the harassment by filing a charge internally or with an administrative agency. In sexual harassment cases, conduct that is severe and pervasive and not remedied often gives rise to a valid claim of constructive discharge.

The EEOC guidelines note that claims of constructive discharge are often brought with hostile work environment claims. If you prove that you were constructively discharged because of an abusive work environment, then a quid pro quo claim is also established.

Constructive discharge was proved in these cases:

  • An industrial nurse was the object of sexual advances and remarks from her supervisor. He showed her pornographic pictures that he said illustrated her talents. When she tried to snatch one of the pictures, he grabbed her arm and threatened to kill her if she tried to move. She threw coffee at him and ran away, screaming and falling down a flight of stairs as she went. The court ruled that his conduct was "grossly offensive" and that any reasonable person in the nurse's position would have quit her job rather than put up with it.
  • A secretary for a union was regularly harassed by an executive officer of the union. The court ruled that she was compelled to quit after he propositioned her, touched her breasts, pawed between her legs, and threatened to rape her while brandishing a gun.

Constructive discharge was not proved in the following cases:

  • A hospital technician complained of sexual harassment by an administrator. Her charge was promptly investigated, and the harasser was told to stop the harassment. When the harassment resumed, he was told that any further harassment would lead to his termination. The technician was not satisfied. She quit her job, claiming that the hospital had constructively discharged her by not moving her to another floor, far away from the harasser, or by not firing him. The court disagreed. It found that the hospital had taken effective remedial action not once, but twice. Given this, her situation was not intolerable. The technician should have given these measures a chance to work rather than quit.
  • A woman quit her job immediately after being harassed by a coworker, even though the employer promised her that she would not have to work with him again. She had not been constructively discharged, the court ruled, because the company tried to remedy her complaint, and she had not waited to see if its actions were effective.
  • A parole case worker's boss asked her if he could hug and kiss her. He phoned and used crass language to ask her whether she preferred vaginal or anal sex. He told her that if she took care of him, he would take care of her. The court decided that a reasonable person would have found these working conditions intolerable. But, it also found that the case worker had not been constructively discharged because (1) she could have filed a grievance with the personnel department or lodged a complaint with her boss' superior and (2) she admitted that the harassment was not the only reason she left the job.
  • The plaintiff waited until six months after she had been harassed to quit her job.

SEXUAL HARASSMENT CLAIMS STEP-BY-STEP by Dale Callender. Copyright ) 1998 by Barron's Educational Series, Inc. Published by arrangement with Barron's Educational Series, Inc.

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