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What is Constructive Discharge?

June 19, 2018
Constructive discharge means that an employee made a reasonable decision to resign because of unendurable working conditions. The key factor for a court to decide a constructive discharge case is what caused this employee to voluntarily leave employment? 
A regular discharge is familiar ground. The employee has been progressively warned about his/her job being at risk, the issues are well documented and the employee is terminated with good cause. The employer will be able to prevail against a discrimination claim at the Massachusetts Commission Against Discrimination (MCAD) and may even be able to show that the employee is not entitled to unemployment compensation based on the employee’s behavior at work.    
Constructive discharge is different. The US Supreme Court has defined “constructive discharge” to mean it was an employee’s reasonable decision to resign because of unendurable working conditions. If the employee can prove that, the courts will then treat the separation the same as a regular discharge for purposes of determining an appropriate legal remedy. 
Various courts have recognized constructive discharge claims in cases involving pregnancy; national origin; religion; race discrimination; sex discrimination; and whistleblower retaliation cases.
Massachusetts Commission Against Discrimination and Constructive Discharge
MCAD has written guidelines on what a constructive discharge means in discrimination cases. The guidelines note that an employee alleging sexual harassment may prove constructive discharge by showing that he/she left her job under circumstances in which a reasonable person in that position would have felt compelled to resign. 
The likelihood of proving a claim of constructive discharge increases the longer the harassment persists, particularly where the employee has complained of the harassment and no or inadequate remedial action has been taken by the employer. Constructive discharge may occur even if the harasser does not act with the specific intent of forcing the complainant to resign from his/her job. 
On the other hand, a former employee may not show constructive discharge when the employee resigns due to general dissatisfaction with the workplace or because of other non-discriminatory conduct. 
The employee claiming sexual harassment must pursue reasonable alternatives to quitting, such as filing an internal complaint, to establish constructive discharge. An employee may be expected to make clear to the offending party that the sexually harassing behavior is unwelcome and request that it stop. 
If an employee resigns before the employer has had a reasonable opportunity to investigate and address the allegation of harassment, the resignation is less likely to be determined to be a constructive discharge. That is why it is so crucial for an employer to have its sexual-harassment policy issued annually and to make sure all employees are familiar with the rights and remedies it provides so that they know where to file a complaint.
If the person files an internal complaint and the employer fails to respond adequately, constructive discharge may occur. Responding to allegations of harassment in a prompt, effective, non-retaliatory manner may prevent a finding of constructive discharge. 
The Massachusetts unemployment system recognizes constructive discharge as a basis for receiving benefits. Among the bases for which an Unemployment Insurance claim may be made are sexual harassment, domestic violence, and urgent necessity. Some examples: 
  • an employee who must leave work due to illness or the need for treatment (including treatment for alcoholism), or due to family responsibilities, such as to care for an ill family member or because child-care arrangements unexpectedly collapse;
  • a claimant who was pregnant who could not perform heavy lifting had an urgent, compelling, and necessitous reason for quitting when her employer’s only offer to accommodate her medical necessity was to reduce her hours, without providing any relief from lifting heavy items;  
  • a claimant who left her job after learning that she would not be able to change her hours to make them compatible with her child-care need;, and  
  • a claimant suffering from severe mental disorders who believed his mental condition would lead to discharge left voluntarily because his illness prevented compliance with the obligation to preserve employment.  
While the Department of Unemployment Assistance reviews each case on its merits, the breadth of these exceptions indicates that an employer should make sure it fully understands why the person is “voluntarily” quitting prior to determining whether to contest the UI claim.
Call the AIM Employer Hotline at 800-470-6277 if you have questions about this or any other HR-related matter. 
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