Constructive Termination and Unlawful Discharge

Before terminating or laying off workers, employers should know all the laws about termination to avoid lengthy court litigation and costly settlement which may amount to thousands or even millions of dollars.

In other cases, some employers make the working condition for employees intolerable to force them to resign. However, doing so is considered illegal and employers may face a lawsuit based on constructive discharge.

One example of constructive discharge involved a woman who has complained that a worker was harassing her. But instead of pursuing the case, she was forced to resign because her employer was giving her extra tasks with a purpose to make the working environment intolerable for her.

In the example stated above, the employer did not directly discharge her but he may still face lawsuit because she has not been willing to resign (the condition just forced her to do so).

In most cases, constructive discharge also involves demotion, public humiliation, and oral defamation which make the working environment more unbearable.

According to lawyers, victims of constructive discharge can file claims to recover economic damages (e.g. loss of wages) and non-economic damages (e.g. emotional anguish).

Meanwhile, workers should prove all the factors stated below to support their claims:

• The employer has recently changed the working condition of a worker, forcing him or her to resign.

• The change of working condition is intolerable that any reasonable person will be forced to quit his or her job.

• The employer has intentionally committed or allowed the intolerable changes.

• The time of resignation and the change in working condition happened closed in time. This is important to establish a cause and effect relation between these two factors.

Some petty changes such as placing a workers office in a cubicle farther from the lounge area is not considered as a ground for constructive discharge. According to lawyers, changes should be extraordinary and intolerable to consider these unlawful. So when the changes in working condition can be tolerated by other workers, it only means that an employer has not violated any law.


At-will Employment

Many US companies follow at-will employment which is a contract that allows workers to quit any time they want and employers to terminate anyone without giving valid reasons. However, having this contract will not protect employers from unlawful termination lawsuit.

Even if at-will employment gives employers the right to terminate a worker without valid reasons, they can be sued if the termination has violated public policy such as:

• Terminating an employee for practicing his statutory rights such as filing a workers compensation, taking medical leave, and filing a lawsuit against his employer.

• Terminating a worker because of his nationality, race, color, sexual orientation, gender, disability, age, and religion.

• Firing an employee for refusing to commit any unlawful act such as tax evasion and giving false statement in a court.

• Discharging a worker who is a whistle-blower.

• Firing a worker for practicing his legal obligation such as serving in a jury and testifying in courts.


Our employment attorneys are experienced in handling employment and labor law cases including constructive termination. For consultation, visit our website and call our toll free number.