Constructive discharge occurs when an employee resigns due to unbearable working conditions created by the employer that would cause a reasonable person to resign. To prove constructive discharge, an employee must show they experienced discrimination, harassment, or other intolerable behavior and conditions that forced them to resign involuntarily. If proven, an employer may be liable as if they wrongfully terminated the employee. Common examples of intolerable behavior include bullying, discrimination, hostile work environments, or significant changes to job duties or pay without cause. The standards for constructive discharge claims are high, and an employee bears the burden to prove the conditions were truly intolerable, not just unpleasant or uncomfortable.

1. What is Constructive Discharge?
Constructive Discharge: Everything You Need to Know

2. What is Constructive Discharge?
• Constructive discharge occurs when an
employee resigns after experiencing
unbearable working conditions that caused
their resignation.
• The negative working conditions must be
such that a reasonable person would not
continue working and thus the resignation is
treated as a dismissal by the employer.

3. What is Constructive Discharge?

4. What is Constructive Discharge?
• Employee who has been constructively
discharged may be able to file a complaint
against the employer as if the employer had
wrongfully terminated their employment.

5. Constructive dismissal
• In employment law, constructive dismissal,
also called constructive discharge or
constructive termination, occurs when an
employee resigns as a result of the employer
creating a hostile work environment.

6. Constructive Dismissal
• Since the resignation was not truly
voluntary, it is, in effect, a termination.
• For example, when an employer places
extraordinary and unreasonable work
demands on an employee to obtain their
resignation, this can constitute a
constructive dismissal.

7. Constructive Dismissal

8. Constructive Dismissal
• The exact legal consequences differ between
different countries, but generally a
constructive dismissal leads to the employee's
obligations ending and the employee acquiring
the right to make claims against the employer.
• The employee may resign over a single serious
incident or over a pattern of incidents.
Generally, a party seeking relief must have
resigned soon after one of the constructive acts.

9. Constructive Dismissal

10. How Can an Employee Prove
Constructive Discharge?
• Constructive discharge can be difficult to
prove but is similar to proving wrongful
termination and workplace discrimination
claims.
• The Equal Employment Opportunity
Commission or EEOC provides three main
factors in determining whether a
constructive discharge occurred:

11. How Can an Employee Prove
Constructive Discharge?

12. How Can an Employee Prove
Constructive Discharge?
• The existence of discriminatory or
retaliatory behaviour against the employee in
the workplace.
• Whether such behaviour was so intolerable
to a reasonable person.
• Whether the employee was forced to resign
or retire because of such behaviour.

13. The existence of discriminatory or
retaliatory behaviour

14. Whether such behaviour was so
intolerable to a reasonable person

15. Whether the employee was forced to resign or
retire because of such behaviour

16. How Can an Employee Prove
Constructive Discharge?
• Depending on the state, there may be other
considerations such as how many incidents
occurred and their severity.
• Time between the intolerable behaviour and
the resignation is also relevant.

17. Changes to the employment relationship
• Typically, the first way to claim constructive dismissal
involves an employer making substantial changes to the
employment contract, such as:
• a demotion;
• altering the employee’s reporting structure, job
description or working conditions;
• lowering an employee’s compensation;
• changing hours of work;
• imposing a suspension or leave of absence; and
• relocating the employee’s workplace.
• In addition, failure on the part of an employer to provide
employment standards (e.g. overtime pay, vacation pay,
etc.), can result in a constructive dismissal.

18. Changes to the employment relationship
Demotion
altering the employee’s reporting structure

19. Lowering An Employee’s Compensation

20. Changing Hours Of Work

21. Imposing A Suspension Or Leave Of
Absence

22. Relocating The Employee’s Workplace

23. Toxic Work Environments
• An employee may also be able to claim a
constructive dismissal based on an employer’s
conduct, rather than a change to a specific or
implied term of the employment contract.
• An example of this kind of constructive
dismissal is a “toxic work environment”. In
this regard, if a work environment is so
poisoned that a reasonable person wouldn’t be
expected to return, then constructive dismissal
is likely.

24. Toxic Work Environments

25. Toxic Work Environments
• A toxic work environment is classically
defined as unjustified criticism as well as
vague and unfounded accusations of poor
performance, especially where authority
and respect with co-workers had been
seriously undermined and compromised.
• Another example of toxic work environment
is where the employer fails to prevent
workplace harassment.

26. Toxic Work Environments

27. What Conditions can Cause
Constructive Discharge?
• It is important to note that intolerable
conditions can be created by other
employees similarly situated to the employee
making a claim of constructive discharge.
• It is not necessary that the conditions were
created solely by a supervisor or authority
figure in the workplace; the failure of the
employer to correct or stop the condition
may create the liability for the discharge.

28. What Conditions can Cause Constructive
Discharge?
• The following are examples of working
conditions that can cause employees to claim a
constructive discharge:
• Bullying in the workplace either by one or more
co-workers or supervisors.
• Illegal discrimination such as discrimination
based on race, sex, ethnicity, religion, or place
of origin.
• Sexual harassment.
• Hostile work environment.

29. Bullying in the workplace

30. Illegal discrimination such as discrimination based
on race, sex, ethnicity, religion, or place of origin

31. Sexual harassment

32. Hostile Work Environment

33. What Conditions can Cause Constructive
Discharge?
• Dramatic and intolerable changes to the
employees hours, pay or responsibilities.
• Retaliation after an employee has made a valid
complaint, reported some wrongdoing, or
engaged in whistle blowing on the employer.
• Intolerable humiliation of the employee.
• The terms of the employment contract were
breached and such breaches created such
intolerable conditions.

34. Dramatic and intolerable changes to the
employees hours, pay or responsibilities

35. Retaliation after an employee has made a valid
complaint, reported some wrongdoing, or engaged in
whistle blowing on the employer

36. Intolerable humiliation of the employee

37. Typical causes
• The person causing the dismissal does not
need the authority to dismiss, as long as they
acted in the course of employment.

38. Typical causes
• Constructive dismissal is typically caused by:-
• unilateral contract changes by the employer such as:
deliberate cuts in pay or status (even temporary),
• persistent delayed wages,
• refusal of holiday,
• withdrawal of car,
• suspension without pay (or even on full pay),
• dramatic changes to duties, hours or location
(beyond reasonable daily travelling distance), or
• breach of contract in the form of bullying

39. Persistent Delayed Wages

40. Refusal Of Holiday

41. Suspension Without Pay

42. Typical causes
• Ignoring Complaints,
• Persistent Unwanted Amorous Advances,
• Bullying And Swearing,
• Verbal Abuse (Typically Referring To Gender,
Size Or Incompetence,
• Singling Out For No Pay Rise,
• Criticising In Front Of Subordinates,
• Lack Of Support (e.g. Forcing To Do Two
Peoples' Jobs),

43. Ignoring Complaints

44. Persistent Unwanted Amorous Advances

45. Bullying And Swearing

46. Verbal Abuse

47. Singling Out For No Pay Rise

48. Criticising In Front Of Subordinates

49. Typical causes
• failure to notify a woman on maternity leave of a vacancy which
she would have applied for if she had been made aware of it,
• refusal to confirm continuity,
• revealing secret complaints in a reference (even ones required by
a regulator, or
• breaches such as: behaviour which is arbitrary, capricious,
inequitable, intolerable or outside good industrial practice,
• conduct that undermined trust and confidence (i.e. offering an
incentive to resign to avoid performance managing capability),
• refusal to look for an alternative role due to workplace stress,
• disproportionate disciplinary penalty,
• employer tricks employee into resigning

50. Failure To Notify A Woman On Maternity
Leave

51. Refusal To Confirm Continuity

52. Disproportionate Disciplinary Penalty

53. Employer Tricks Employee Into Resigning

54. What Remedies are Available for an Employee Who
was Constructively Discharged?
• If an employee is successful in a claim for
constructive discharge, they may entitled to the
following relief:
• Reinstatement of their former position
• Removal of another employee or supervisor
responsible for the intolerable conditions
• Money damages
• Lost wages
• Attorneys fees

55. Reinstatement

56. Removal of another employee

57. What Remedies are Available for an Employee Who
was Constructively Discharged?
• Constructive discharge claims are complicated and
difficult to prove. If you are suffering intolerable
working conditions, contact a local employment lawyer
before resigning to ensure the best way to handle the
situation so that your future claim is more successful.
• Different states have varying factors and elements.
Consulting an employment lawyer can help you
understand what is required and how to prove your
claim. A lawyer can prepare your case and represent
you in settlement negotiations and in court.

58. Constructive discharge claims are
complicated and difficult to prove

59. Constructive Discharge: Were You
Forced to Resign?
• If you were forced to quit your job because
of intolerable working conditions, you may
be able to sue.

60. Constructive Discharge: Were You
Forced to Resign?
• If you quit your job because of intolerable work
conditions or treatment, in certain circumstances, your
resignation may be considered a termination.
• A resignation under these circumstances is called a
“constructive discharge” or “constructive termination.”
If you were constructively discharged from your
employment, the law will typically treat you as if you
were fired.
• This means that you have certain rights that are typically
not available to employees who quit their jobs, including
the right to receive unemployment benefits and to file a
wrongful termination lawsuit against your employer.

61. Constructive Discharge: Were You Forced to
Resign?

62. History of Constructive Discharge
• Constructive discharge is a legal concept that
was first developed by the National Labor
Relations Board (NLRB) in the early days of
the labor union movement in the United States.
• Today, the concept of constructive discharge
applies to union and non-union employees alike.
However, it was originally developed in the
1930s to stop efforts by employers to
discourage employees from unionizing or
forcing union employees to resign from their
positions.

63. History of Constructive Discharge

64. Employer Efforts to Discourage
Unionization
• Some employers stubbornly opposed efforts by
their employees to form unions to collectively
negotiate for higher pay rates, more benefits,
and better working conditions.
• These employers used a variety of measures,
including physical violence, to discourage
employee unionization. In some cases,
employees ended up leaving their jobs rather than
suffering such abuse at the hands of their
employers.

65. Employer Efforts to Discourage
Unionization

66. Forced Resignations
• Forced Resignations
• Along the same lines, instead of openly discouraging
union activity, some employers created intolerable
working conditions with the specific intention of forcing
employees to resign.
• Employers often retaliated against employees who had
made efforts to form unions. When these employees were
forced to resign because of intolerable working conditions,
they sued, relying on the constructive discharge provision
adopted by the NLRB in the National Labor Relations Act
(“the Act”). The U.S. Supreme Court allowed these
employees to sue, holding that an employer violates the
Act when it “purposely creates working conditions so
intolerable that the employee has no option but to
resign.”

67. Forced Resignations

68. Constructive Discharge for Non-Union
Employees
• Although the concept of constructive discharge
arose out of the union movement, courts have
extended it to situations involving non-union
employees as well.
• Although the rules differ in some ways, the
standard for what qualifies as a constructive
discharge is similar: when an employee quits
his or her job because the working conditions
are intolerable, the resignation is legally
regarded as a termination.

69. Constructive Discharge and
Discrimination
• The U.S. Supreme Court has extended the legal concept of
constructive discharge to cases brought under Title VII of
the Civil Rights Act and the Age Discrimination in
Employment Act (ADEA), the federal laws that prohibit
discrimination and harassment in employment based on
certain protected characteristics. And, many state courts also
recognize the concept in similar types of cases under state
laws.
• If you were harassed or discriminated against because of
your gender, race, religion, sex, nationality, age or
disability, and it caused you to quit your job, you may be
able to file a wrongful termination lawsuit even if you
technically quit or resigned.

70. Constructive Discharge and
Discrimination

71. What Constitutes “Intolerable Working
Conditions?”
• To successfully argue that you were
constructively discharged under federal
antidiscrimination laws, you must show that
the harassment or discrimination created
such intolerable working conditions that
you were forced you to quit your job.

72. What Constitutes “Intolerable Working
Conditions?”

73. What Constitutes “Intolerable Working
Conditions?”
• It won’t be enough to show that your
supervisor treated you badly or that you
were no longer happy at work.
• Instead, you must show that the working
conditions imposed on you were “objectively”
intolerable, meaning that the working
conditions were so bad that the average person
in your situation would also have been
compelled to resign.

74. What Constitutes “Intolerable Working
Conditions?”
• In practice, this is a very high standard that is
often difficult to meet. In general, even basic
discrimination claims (such as a woman receiving
lower pay than a man in the same job) will not
meet this standard.
• The resigning employee must prove that the
employer engaged in especially egregious
conduct, such as physically harassing the
employee, demoting him or her in a
humiliating way, or the like.

75. The resigning employee must prove that the
employer engaged in especially egregious conduct

76. What is Constructive Discharge?
• People quit their jobs for a number of reasons.
Often, life circumstances change, or the job
just isn’t the right fit.
• In the case of constructive discharge, a work
environment becomes so hostile and
intolerable an individual is forced to quit.

77. Constructive Discharge

78. Is constructive discharge illegal?
• Is constructive discharge illegal? Yes.
• According to the Equal Employment
Opportunity Commission (EEOC),
“discriminatory practices… also include
constructive discharge or forcing an employee
to resign by making the work environment so
intolerable a reasonable person would not be
able to stay.” Does this sound like what has
happened to you?

79. What Constitutes Intolerable Working
Conditions?
• A person who is forced to quit due to
intolerable working conditions may have
been subject to unlawful harassment or
discrimination. This can include but is not
limited to:

80. What Constitutes Intolerable Working
Conditions?
• Sexual Harassment
• Sex or Gender Discrimination
• Pregnancy Discrimination
• Religious Discrimination
• Age Discrimination
• Race Discrimination
• Disability Discrimination
• Consistent Workplace Bullying, Humiliation,
Badgering, or Harassment

81. Age Discrimination

82. Race Discrimination

83. Disability Discrimination

84. Religious Discrimination

85. Pregnancy Discrimination

86. What Constitutes Intolerable Working
Conditions?
• If proven, any of these types of intolerable
working conditions may meet the lawful
requirements of constructive discharge. In
addition, there are other circumstances that
may meet the conditions, including:
• A reassignment to menial work
• Pay or hour decreases without adequate
justification
• Demotions, job responsibility removal without
reason, and forced retirement

87. A reassignment to menial work

88. What Constitutes Intolerable Working
Conditions?
• Sometimes, people believe they have grounds
for filing a case based on certain behaviours,
such as mean looks or whispering between co-
workers and/or supervisors.
• Although uncomfortable, these behaviours are
not likely to support a constructive discharge.
Also, if you believe that someone may feel a
certain negative or hostile way towards you for
whatever reason, that does not in and of itself
constitute constructive discharge.

89. The Burden of Proof
• The burden of proof when it comes to
constructive discharge is on the employee.
• In order to establish constructive discharge, the
environment must be truly intolerable not simply
uncomfortable.
• Typically, there needs to be some evidence that
shows that the employee contacted their
supervisor, a company human resources
professional, or other senior leaders or bosses
regarding the ongoing intolerable working
conditions.

90. The Burden of Proof

91. The Burden of Proof
• Further, the employee will need to show that
the employer failed to take action to address
the intolerable conditions.
• Lastly, the hostility must be directed at you
based on a protected status such as age, sex,
race, religion or because you engaged in
protected activity such as complaining about
harassment, filing a worker’s compensation
claim, or whistle blowing. Generalized hostility
(“my boss yells at me”) will not support an
unlawful constructive discharge or termination.

92. The Burden of Proof

93. The Burden of Proof
• A legal claim needs to be filed promptly before the
statute of limitations runs out. That is why it is
important to contact an employment law attorney as
soon as possible after you are forced to quit and you
feel you may meet the requirements for constructive
discharge.
• If you were forced to quit due to discriminatory
actions, such as the ones listed above, it is critical to
know that the U.S. Supreme Court ruled in 2016
that the clock on the statute of limitations starts
when the employee gives notice, not when the last
discriminatory incident occurred.

94. The Burden of Proof

95. Constructive Discharge and
Unemployment Benefits
• When someone has to resign due to intolerable
working conditions, this may be considered a
termination in the eyes of the law.
• This means that you may be entitled to
unemployment benefits, among other potential
compensatory damages. If you can prove you had
no reasonable alternative but to leave your
employment because of the hostile environment,
in the eyes of the law it is not entirely unlike
being fired because of sex, race, age, or other
discriminatory practices.

96. Constructive Discharge and
Unemployment Benefits

97. Constructive Discharge and
Unemployment Benefits
• Florida unemployment eligibility requirements
also specifically say that “You must have lost
your job through no fault of your own, so you
must not have quit for personal reasons or
been terminated for malicious misconduct
(poor job performance does not disqualify
you).”
• This “personal reasons” phrase does not include
the circumstances that would equate to
constructive discharge.

98. Constructive Discharge and
Unemployment Benefits

99. Constructive Discharge and Wrongful
Termination
• The circumstances surrounding a case for
constructive discharge can make the issue seen
in the eyes of the laws as a case for wrongful
termination.
• This type of claim may have to be filed with
the Equal Employment Opportunity
Commission (EEOC).

100. Constructive Discharge and Wrongful
Termination

101. Constructive Discharge and
Unemployment Benefits
• Retaliation may include a change in duties,
discriminatory practices, harassment, etc. This
could potentially form the basis for a claim
of unlawful termination, often referred to as
wrongful termination.

102. Equal Employment Opportunity
Commission (EEOC).

103. Applicability Of "Constructive Dismissal"
Under Indian Laws
• The recent advancement in technology has
led to a new era of artificial intelligence and
robotics. While there may not be a need for
debate on its benefits, there is a real threat that
robots are poised to replace both blue collar
and white collar jobs.
• Employers need to be well prepared to
rationalize their workforce, including
massive reduction in work force (RIF)

104. There Is A Real Threat That Robots Are Poised To
Replace Both Blue Collar And White Collar Jobs

105. There Is A Real Threat That Robots Are Poised To
Replace Both Blue Collar And White Collar Jobs

106. Laws governing RIF
• India has a system of federal and state specific
labour laws.
• Employment termination provisions are covered
in the Industrial Disputes Act 1947 (The ID act)
• Model Standing orders of the Industrial
Employment (Standing Orders) Act 1946 and
the state specific statues applicable to shops and
commercial establishments, in addition to the
employment contract.

107. Laws governing RIF

108. Concept of ‘Retrenchment’
• Retrenchment is defined as 'termination by the
employer of the service for any reason whatsoever,
otherwise than as punishment inflicted by the way
of disciplinary action.
• Retrenchment excludes
• Voluntary Retirement
• Retirement on reaching the age of superannuation
• Non-renewal of the contract upon expiry
• Continued ill health.

109. Concept of ‘Retrenchment’

110. Concept of ‘Retrenchment’
• The Supreme Court of India has observed
that the right of employers to retrench is
inherent in the right of employers to manage
their business.
• However, this is subjected to compliance
with the conditions of retrenchment
prescribed under law

111. Concept of ‘Workmen’
• Employees who are categorized as ‘workmen’ are
generally entitled to greater protection by law.
• A workmen is any person employed to do any
manual, unskilled, skilled, technical, operational.
Clerical, or supervisory work for hire or reward.
• Employees acting in a managerial, administrative or
supervisory capacity are not considered as workmen
(Section 2 of the ID act)
• Persons who are not ‘workmen’ may however
continue to be governed by state specific legislation
applicable in case of shops and commercial
establishments.

112. Concept of ‘Workmen’

113. Government Permission for employment
termination
• The legal requirement with respect to the
termination of service are more onerous if
more than 100 workmen are employed.
• Factories with a minimum of 100 workmen are
required to obtain prior permission of the
labour authorities in order to terminate its
workmen. Such an application should
mention the reason behind the intended
termination.

114. Government Permission for employment
termination

115. Government Permission for employment
termination
• In addition to the afro mentioned
requirement of obtaining permission for
labour authorities, the law also requires to
serve three months notice to the workmen,
indicating the reason for the termination. The
termination can take place only after the expiry
of the notice period.

116. Government Permission for employment
termination

117. Government Permission for employment
termination
• Any retrenchment of a workmen without
the permission or in contravention of the
order refusing permission will be deemed to
be illegal and inoperative in law, in addition
to penal consequences that the employer shall
be liable to as per the ID act.

118. Government notification for employment
termination
• In cases of both factories with less than 100
workmen and commercial establishments,
the employer is required to notify the labour
authorities of the employment termination.

119. Indian Judiciary’s position on an RIF
• Courts in India have taken the view that an
employer has a right to reorganize its
business; however, such a right should be
exercised in a bonafide manner and not with
the ulterior objective of victimizing
employees.

120. Consequences of employment
termination on frivolous grounds
• The law prescribes certain requirements for
a valid termination of employment. Any
non-compliance of the mandatory prerequisites
would render termination invalid and illegal.
In such cases, the courts may direct the
employer to reinstate the employees with
continuity and payment of back wages.

121. Consequences of employment
termination on frivolous grounds

122. Unfair Labour Practice
• The law also prohibits the employer from
committing an unfair labour practice
(Section 25 T of the ID act).
• Unfair labour practices include discharging or
dismissing a workmen by the way of
victimization, in bad faith or for patently
false reasons.

123. Unfair Labour Practice

124. Unfair Labour Practice
• Such practices are punishable with the
imprisonment for a term of up-to six
months/ and or a fine of at least 10,000
Indian rupees (approx $ 150) (section 25 U of
the ID act).

125. References
•Constructive dismissal
https://en.wikipedia.org/wiki/Constructive_dismissal
•Constructive Dismissal and Wrongful Termination
https://employment.findlaw.com/losing-a-job/constructive-dismissal-and-wrongful-
termination.html
•Constructive Discharge Claim
https://www.investopedia.com/terms/c/constructive-discharge-claim.asp
•Constructive Discharge: Were You Forced to Resign?
https://www.nolo.com/legal-encyclopedia/constructive-discharge-were-you-forced-resign.html
•Employment & labour law in India
https://www.lexology.com/library/detail.aspx?g=fa2fb547-5828-419a-bd3b-4ef01b612643
•Employment downsizing and reduction in force in India
http://www.nishithdesai.com/fileadmin/user_upload/pdfs/NDA%20In%20The%20Media/News%2
0Articles/Employment_downsizing_and_reduction_in_force_in_India.pdf
•How to Prove Constructive Discharge
https://www.wikihow.com/Prove-Constructive-Discharge
•What is Constructive Discharge?
https://www.thebalancecareers.com/what-is-constructive-discharge-2061654

126. Thanks…