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Constructive Discharge: Defined

By on October 29, 2019

Some employees may be facing unbearable conditions in their workplace. For example, you may be mistreated or receive negative pay for reasons that are not related to work ethic or face discrimination and harassment. If such mistreatment rises to a level where no reasonable person would continue in this position, your employer may be found liable for constructive discharge. In this article, we will discuss how constructive discharge is defined in California, when do you qualify for it, and what to do if you find yourself in an unpleasant situation that appears to meet the criteria of constructive discharge.

What is a Constructive Discharge in California?

Constructive discharge has been defined by the California Supreme Court. It relates to cases when an employee proves that the employer created adverse working conditions that would lead a reasonable person to resign, which the employee would do. In practice, the employee just says, “I quit!” But in actuality the resignation is involuntary and against the employee’s will. The employee simply cannot continue to work under unbearable conditions.

Examples of Constructive Discharge

The following are examples of unbearable working conditions under which you may have a claim for constructive discharge. An employee quits his or her job as a result of any of the following.

  • Bullying in the workplace. This means that you are mistreated in the workplace and undergo either physical or emotional harm. Bullying can be done either by co-workers or supervisors.
  • Discrimination. Discrimination may be based on age, disability, equal pay/compensation, genetic information, national origin, pregnancy, race/color, religion, and sex.
  • Harassment. Harassment is a form of employment discrimination. According to U.S. Equal Employment Opportunity Commission harassment “is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive”.
  • Hostile work environment.
  • Unreasonable changes in employee hours, pay.
  • Retaliation after an employee has made a valid complaint, reported some breach.
  • A breach of an employment contract.

When Do I Qualify for Constructive Discharge?

It is not enough for the employee to claim that he or she has been subjected to wrongful conduct. Under California’s wrongful constructive termination law, constructive termination occurs under these three conditions.

  1. The employer intentionally creates or knowingly permits unbearable conditions,
  2. Working conditions that are intolerable or aggravated,
  3. A person has no choice but to resign.

Example of Constructive Discharge

Joe was a welder at a construction company. He worked there for three years. During that time, the initial owner of the company passed away, after which the owner’s son took charge of his father’s business. This new owner had intentions to replace Joe with a younger employee who will require less pay for the same working hours. However, Joe was under a union contract, which implied that he cannot lose his job without a good cause.

Joe was a welder at a construction company. He worked there for three years. During that time, the initial owner of the company passed away, after which the owner’s son took charge of his father’s business. This new owner had intentions to replace Joe with a younger employee who will require less pay for the same working hours. However, Joe was under a union contract, which implied that he cannot lose his job without a good cause.

Knowing this, the new owner did everything he could to make Joe’s working conditions terrible. The owner denied access to safety equipment to Joe which meant that Joe could not work without jeopardizing his physical safety. Joe, of course, complained about his working conditions, yet his complaints were not addressed. Soon he resigned as he had no access to safety equipment and felt like he was being discriminated against due to his age.

In the case above, Joe would have a viable claim for constructive discharge.

How to Prove Constructive Discharge Claims?

Proving constructive dismissal can be difficult. For an employee to prove that he had to resign unwillingly, two things need to be proven.

  1. Proof that working conditions were intolerable.
  2. Proof that the employer was well aware of the intolerable working conditions.

Note that working conditions must be proven to be intolerable for a reasonable person.

It isn’t sufficient to claim that the conditions were bad enough to resign. It needs to be documented. For example, the victim may use emails, notes, and witnesses to show that they have been subjected to illegal treatment.

The person may have undergone emotional distress. Medical records, drug prescriptions or a testimony from a therapist can be helpful to the case.

The second requirement is the employer’s awareness that they have created intolerable working conditions. The best thing to do is to inform the employer about the situation because the employer may have no knowledge about their misconduct. If the employer has no knowledge about intolerable conditions in their workplace, the charge may not be valid. The employee will not be able to prove that the actions of their employer were deliberate. The best course of action is to lodge a formal complaint to the employer in writing, either by email, text message or a letter. This is a better method than verbally speaking to the employer because it creates a documented proof that can be used as evidence in a potential claim, assuming the working conditions will not get better after your complaints.

Constructive Discharge Resignation Letter

Writing a constructive discharge resignation letter may be tough due to the fact that the employee is upset because of the situation, and might get emotional while writing it. However, mind that generally, the preferred method is to make the letter as professional as possible. A formal constructive discharge resignation letter may include a brief statement with the exact date, employees’ contact details and their signature. The letter should be submitted to the appropriate individuals or departments. This is typically the Human Resources and/or Legal department, the company owner, president or direct or regional supervisors.

Please find attached templates for constructive discharge resignation letters here.

Constructive Discharge Statute of Limitations

There is a time limit present when making a claim for constructive discharge. In late May, the U.S. Supreme Court issued a decision that makes it clear what the time limits are.

EEOC Constructive Discharge Cases

In Green v Brennan case, Marvin Green tried to bring a wrongful termination lawsuit against the United States Postal Service (USPS). Mr. Green claimed that he did not get a promotion based on racial grounds. During the Mr. Green’s case, he was required to bring his complaint to the Equal Employment Opportunity Commission (EEOC) within 45 days of either “the matter alleged to be discriminatory,” or “In the case of personnel action, the effective date of the action.”

The postal service claimed that Mr. Green missed the deadline for filing the case because he did not file a complaint with the EEOC within 45 days of the alleged discriminatory action. Both the Federal Trial Court and the Federal Appeals Court agreed with USPS.

The case was taken to the United States Supreme Court. The Supreme Court ruling claimed the time period “…should not begin to run until after the discharge itself.” This means that the clock starts to run after the resignation notice is given. This makes things much fairer and clearer for those employees whose rights were violated. After all, they cannot sue their employers while they are still working for them.

Constructive Discharge Cases and Settlements

To further illustrate what types of situations, constitute constructive discharge, below are several real-life constructive discharge cases that have been decided at court or received a settlement. These cases should give you a better understanding of what a valid claim is and how they are normally settled.

Diana Duncan v. GM: Diana Duncan was found to be a victim of sexual harassment at General Motors plant. Her supervisor wanted to have a relationship with her, but after she refused, her supervisor became hostile and critical of her work. She settled the case for $80,000 although initially, the jury awarded her 1 million dollars.

Delaronde v. Legend Classic Homes, Ltd.: Arleen Delaronde worked as a successful sales associate for Legend Classic Homes, Ltd. She worked at the Legends Trace Community realizing more than $9 million in net sales in 2012. Soon thereafter, Legend hired a male sales associate and replaced Arleen with Marvin Bullard. Arleen was offered a job in a community targeting a lower-income population. The impact of changing her position essentially caused her to lose a substantial portion of her income. The court found that she has faced sex discrimination because the company had no reason to shift her to a lower-income community other than her gender. The Delaronde case showcases that there should always be valid and legitimate reasons for personnel decisions, particularly when they materially reduce an employee’s pay.

Karen Crisco v. Medical Clinic: Karen Crisco worked as a nurse with a medical clinic. She was in a relationship with a Muslim man and later converted to Islam. She was wearing a scarf in accordance with her Muslim beliefs, but her employer demanded that she would remove her scarf. He claimed that it was frightening for the patients, and therefore she would have to stop wearing it. As a result, Karen felt forced to resign and sued the clinic on the ground of constructive discharge. Karen prevailed and was awarded a $35,000 constructive discharge settlement with the assistance of EEOC.

Statistics of California Cases and Settlements Relating to Constructive Discharge

This table exhibits the charges by category as of % of total U.S. charges.

% Of Total US
Race 6.30%
Sex 5.90%
National origin 9.50%
Religion 7.90%
Color 5.90%
Retaliation 6.40%
Age 7.50%
Disability 7.10%


More Constructive Discharge Case Examples

The cases below are illustrations of constructive discharge claims in California. They will give you a better understanding of the type of cases filed in California and how they are settled.

Thompson v. Tracor Flight Sys., Inc.: Rosie Thompson worked as the director of the Human Resources department at Tracor’s Mojave facility. She reported to the general manager and had consulting authority. In the course of the reorganization of the company, a new general manager was appointed named Donald Sullivan. Right at the start, he had problems with Rosie Thompson complaining about her work style. Things were getting worse and over time she began experiencing headaches, stomach problems, and insomnia. She reported Sullivan’s behavior to corporate leaders but finally, she just said, “I quit”. She filed a wrongful termination suit under the California Fair Employment and Housing Act and could win the case.

Joanne Hoeper v. City and County of San Francisco: Joanne Hoeper was a City Trial Attorney for the City and County of San Francisco. She was fired by her boss soon after she presented her findings of a $10 million fraud against the city. The fraud related to a plan between plumbing companies and municipal officials. Hoeper sued her former employer and proved that she was wrongfully terminated in violation of the California Whistleblower Act and False Claims Act. She received about $700,000 in lost earnings and $1.3 million in emotional distress.

Esther Kim v. Konad USA Distribution, Inc.: Ester Kim worked at Konad USA Distribution for 4 years. In 2010, she was fired for complaining about Konad USA’s CEO Dong Whang who sexually harassed her. The employee brought an action against Konad USA and Whang for sexual harassment, hostile work environment, retaliation, and wrongful termination in violation of public policy. The trial court awarded the employee $60,000 but Konad objected saying that the employee had not proven that she had exhausted her remedies under the Fair Employment and Housing Act (FEHA). His appeal was turned down by the court of appeal.

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