What is a Constructive Discharge?

Many employment law cases involve employees who are fired in violation of their legal rights. However, companies are often too smart to fire an employee for an illegal reason, and instead try to force them to quit.

Courts understand this reality, and have a name for it: a “constructive discharge.” A constructive discharge is when, instead of firing an employee, a company makes her job so miserable that she is forced to quit.

The Third Circuit recently discussed how an employee can prove a constructive discharge in Colwell v. Rite Aid Corporation. In that case, Ms. Colwell claimed Rite Aid forced her to resign because of her disability, in violation of the Americans with Disabilities Act (ADA), and because of her age, in violation of the Age Discrimination in Employment Act (ADEA). The facts of Colwell are explained in a previous article which discusses a different legal issue — that employers can be required to change an employee’s work shift to accommodate the employee’s disability.

As the Third Circuit explains in Colwell, to prove a constructive discharge an employee must show that the conditions at work were so unpleasant or difficult that a reasonable person would have felt compelled to resign. It then lists relevant factors to determine whether an employee has proved she suffered a constructive discharge. Those factors include whether the employer:

  1. threatened to fire the employee, or suggested she should resign or retire;
  2. demoted the employee;
  3. reduced the employee’s salary or benefits;
  4. transferred the employee to a less desirable position;
  5. changed the employee’s job responsibilities; or
  6. gave the employee an unsatisfactory job evaluation.

The Third Circuit found Ms. Colwell could not prove any of those factors. Rather, she claimed Rite Aid had isolated her from other employees, called her “slow,” and would not allow her to work on the store floor like other employees. The Third Circuit found those facts did not make Ms. Colwell’s workplace so unbearable that a reasonable person would have felt compelled to resign. As a result, it dismissed her constructive discharge claim.

It is important to understand that not every constructive discharge is legally actionable. Rather, an employee has to prove the constructive discharge was because of an illegal reason. For example, a constructive discharge could be actionable if a company forces an employee to resign because of her gender, age, race, pregnancy, or religion, or in retaliation for the employee doing something that is legally protected.

Constructive discharge cases can be challenging to prove because it can be difficult to prove that any reasonable person would have felt they had no choice other than to resign. However, employees whose cases do not meet the constructive discharge standard often have hostile work environment harassment cases. For example, although the Third Circuit found Ms. Colwell could not prove she was constructively discharge, it might have ruled differently if she had instead claimed Rite Aid had harassed her because of her disability and her age.