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Constructive Discharge can Lead to Employment Law Claims


Whenever you fire an employee, there is always the risk of a lawsuit. As we have written about in this blog, there are a seemingly unending number of situations where terminating an employee can result in a discrimination lawsuit, or even a wage claim, or an allegation of the violation of another federal law that protects employees.

In employment law cases, there is often argument about whether the employee was ford for cause, or whether the employer discriminated against the employee or otherwise failed to provide leave, time off, payment, or accommodations–whatever is required under the specific employment law that the suit alleges was violated.

But believe it or not, there is often an argument over whether the employee was actually fired at all. This can seem silly–after all, you’re either fired or you’re not, right?

Constructive Discharge

In fact, there is a concept called constructive firing (or discharge). A constructive firing is when an employer creates an environment that is so hostile, or so undesirable, that the employee can no longer continue working there. Put another way, an employer doesn’t have to use the words “you’re fired” in order to fire someone.

Often, constructive firing occurs when the employer gives the employee an ultimatum if he or she does not resign, or otherwise, threatens some kind of undesirable action at work if the employee does not resign. The employee then “resigns,” but in fact, he or she was fired.

To see if an employee has been constructively fired, courts will ask:

  • Whether the employee was given some other option, instead of resigning or being discharged
  • Whether the employee was given time to choose whether he or she would take the other option, or resign
  • Whether the employee could select the time that he or she was discharged

Simply working in a hostile work environment, will not constitute constructive discharge–although it could be violations of other laws. For example, if a supervisor were to make sexual advances to an employee, the employee may have a sexual harassment claim, but if the employee resigned, he or she would not have been constructively discharged.

If the work environment is made so intolerable that the employee has no choice but to resign, there could be a case of constructive discharge. 

Why It’s Important

Constructive discharge is important, because so many federal laws require that an adverse action be taken by the employer–for example, firing someone because they have a disability, or because they are pregnant, or because they complain about illegal practices at work. If the employee leaves voluntarily, there is often no claim under these laws.

If an employee is constructively discharged, he or she now has the ability to bring a lawsuit.

Just remember if you are an employer, that it’s not the language that matters–it’s whether, given the totality of the circumstances, you created an environment where the employee had no choice but to quit.

Whether you are an employee or employer, we can help with your employment law problems and tell you what your rights are. Call the West Palm Beach employment law attorneys at Pike & Lustig, LLP, at 561-291-8298.




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