Overview: Constructive discharge, or "forced resignation", is a type of organizational exit by an employee that opens the door to several post-termination risks for an employer, including EEOC claims, the need for alternative dispute resolution and costly litigation. Importantly, such claims are typically treated by fact finders like judges and juries similar to involuntary terminations, meaning that employees who can adequately prove a forced resignation can essentially argue that they were wrongfully terminated from employment.
Constructive discharge is treated similarly from state to state - that is, employees are required to demonstrate that working conditions were so intolerable that a reasonable person in the employee's situation would have been compelled to resign. However, there are some important distinctions as to how states determine what types of working environments are considered "intolerable" and whether the employer intentionally created such environments or rather, simply allowed it to fester without knowledge of the situation.
Trends: An important aspect of constructive discharge claims is when the claim begins to accrue: the date the employee actually leaves work or the date the employee tenders his or her resignation. The distinction is crucial because states have unique statutes of limitations that bar certain claims if they are not made on a timely basis.
Author: Michael Jacobson, JD, Legal Editor
Updated to reflect NLRB General Counsel memo 18-02, which addresses, in part, joint employment.
Updated to include information on a Supreme Court decision that addresses the statute of limitations for filing claims of discrimination resulting in constructive discharge.
Arizona employers seeking to inform employees of their rights under Arizona's Constructive Discharge Law should consider including this model policy statement in their handbook.
In-depth review of the spectrum of California employment law requirements HR must follow with respect to voluntary terminations.
In-depth review of the spectrum of Montana employment law requirements HR must follow with respect to voluntary terminations.
In-depth review of the spectrum of New Jersey employment law requirements HR must follow with respect to Voluntary Terminations
Employment glossary definition of Constructive Discharge.
Employment glossary definition of Objectively Intolerable.
HR and legal considerations on the risks of constructive discharge, or “forced resignation”. Guidance and support on this important area of interest.