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What You Need To Know About Constructive Termination

quit jobWhat is "Constructive Termination"

Employees suffering from illegal discrimination and/or retaliation at work are often fired from their job as the culmination of a series of adverse actions taken against them. However, what if there is such a strong hostile work environment rife with discrimination and retaliation that causes an employee to want to quit their job before they are ever fired? Could that employee still have an unlawful termination claim under the law?

Proving an "Unbearable" Situation

The answer is yes. An employee who suffers from illegal discrimination and/or retaliation can quit their job under the theory of constructive termination. In order to prove constructive termination, an employee must show that they the situation was so unbearable that they could no longer remain employed. The standard that the Equal Employment Opportunity Commission and most courts use to determine whether an employee is “constructively terminated” is the reasonableness standard: whether a reasonable employee would have found working conditions intolerable, that the discriminatory conduct against the employee created the working conditions, and that those working conditions caused the employee to “involuntarily” resign.

Proving Constructive Termination

Proving constructive termination, however, is extremely difficult. Adverse employment actions taken against an employee may not be adverse enough to prove a constructive termination claim. For example, being excluded from a training seminar, failing to receive a promotion, or receiving less favorable scheduling may constitute a form of discrimination or retaliation, but in all likelihood would not be enough to qualify for a reason to quit, because work conditions have not become intolerable to the reasonable person. While the work environment has become more difficult and uncomfortable, the employee would not find it impossible to continue to work. However, adverse employment actions like physical threats, massive reductions to the employee’s schedule or pay, or being assigned menial tasks unrelated to the job that the employee was hired to perform could constitute a constructive discharge if the employee were to quit as a result.

Once you prove that you were “constructively terminated” as opposed to simply resigning from your job, the law views you as if you were actually fired for purposes of liability and damages. Always keep in mind that you have a duty to “mitigate” your damages after you leave your job, meaning making a reasonable effort to find comparable employment.

If you feel that you were forced to quit your job because you were unlawfully discriminated and/or retaliated against, please contact Borrelli & Associates, P.L.L.C. immediately to schedule a consultation.

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