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Constructive Discharge
When an employee is forced to resign or forced to retire due to harassment,
discrimination, or retaliation; he or she may be deemed constructively discharged.  If
proven, he or she is entitled to the same remedy as if he or she is discharged.  

The threshold to establish a constructive discharge, however, is higher or more difficult
than for discharge cases.

The following must be established to prove constructive discharge in a discrimination
case:

  • The harassment, discrimination, or retaliation must be established.  

  • The harassment or the impact of discrimination or retaliation was so intolerable
    that any reasonable person within the same protected class (same race, sex, age
    group, disability group, etc., as yours) would feel no choice but to quit or retire
    under similar circumstances.

It is not enough that you felt disgusted.  Your health, for example, must be threatened --
due to harassment, discrimination, or retaliation -- so as to have no choice but to quit or
retire.  Or, your financial hardship (in the case of retaliatory or discriminatory demotion or
salary cut) was so severe that you had no choice but to quit to find a better job, etc.  

When you have no choice but to resign, the resignation letter should make it clear that the
decision was forced upon you because the working condition became intolerable as
result of harassment, retaliation, or discrimination you suffered and because the impact
was so severe that resignation was the only way out under the circumstance.  See a
sample of a resignation letter under constructive discharge.


See harassment, and disparate treatment in the terms and conditions of employment.
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