• Kevin Salute

I Quit! How Bad is “Intolerable” for Purposes of a Constructive Discharge?

constructive discharge

A constructive discharge occurs when the employer’s conduct effectively forces an employee to resign.

Although the employee may say “I quit,” the termination of the employment relationship is deemed to be caused by the conduct of the employer as opposed to the employee’s will.

As a result, a constructive discharge is legally regarded as a termination or a firing instead of a resignation.

Intolerable Working Conditions

To establish a constructive discharge, an employee must prove that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable person in the employee’s position would be compelled to resign.

The adverse working conditions must be unusually “aggravated” or amount to a “continuous pattern” before the situation will be deemed intolerable.

The proper focus is by looking objectively at the working conditions themselves, not the employee’s subjective reaction to those conditions.

The working conditions must be so extreme as to coerce a reasonable employee to resign.

One could certainly argue that the employer has created an intolerable situation by subjecting its employee to daily harassing conduct such as discriminatory comments or abuse.

On the other hand, a negative performance evaluation or counseling card may not be enough to constitute “intolerable” working conditions. A poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge. Criticism of an employee’s job performance, even unfair or outrageous criticism, does not create the intolerable working conditions necessary to support a claim of constructive discharge. Similarly, an employee’s embarrassment about working at a different position does not convert a demotion into a constructive discharge.

While the employee may subjectively believe that the working conditions are intolerable so as to cause him or her to quit, that is not enough. Constructive discharge requires a determination on whether the employee was left with no choice but to quit or to continue to endure the intolerable working conditions from an objective standpoint.


Constructive discharge raises some complex legal and factual issues. Although an employee may have suffered embarrassment or may have felt that they were treated unfairly, such subjective beliefs are not sufficient to establish a constructive discharge. Employees should consider all options before making the decision to quit and examine whether they are being reasonable in their assessment that the working conditions are "intolerable."

Keep in mind also that an analysis of a constructive discharge is merely to determine whether the employee was terminated or voluntarily quit. It is a damages assessment. Even if there was a constructive discharge, there would still need to be an examination of

the reasons why it occurred to determine if such discharge supports a wrongful termination claim.


If you have any questions about this article or any other matter, please feel free to give us a call.

Disclaimer: The foregoing is provided for informational purposes only, is not an advertisement, does not constitute legal advice or legal opinion, and does not create an attorney-client relationship. The content may not apply to the specific facts or a particular matter. You should not act or rely on any information contained in this article without first seeking the advice of an attorney licensed to practice in your jurisdiction.

#lawsuit #constructivedischarge #wrongfultermination

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