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As an employment discrimination lawyer, I see this situation on a regular basis.  Your employer is unlawfully harassing you based upon a protected characteristic or retaliating against you for protected activity such as opposing what you believe to be a violation of the law.  It gets so bad that you feel you need to quit.  But, if you quit, can you still bring a case for the unlawful harassment or retaliation?  Sometimes, yes.

The law recognizes something that is known as a “constructive discharge.”  That is a legal term of art which refers to a situation in which an employer makes the employee’s life so miserable that he or she feels that they need to quit the job.  If a constructive discharge occurs, it is treated as if the employer actually terminated the employee.

A constructive discharge can occur when the employer discriminates or retaliates against the employee to the point at which his or her working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.  This may seem like an easy standard to meet, but it is not.

In determining whether the working conditions occasioned by the harassment are so difficult or unpleasant that a reasonable person would feel compelled to resign, a court will look to the totality of the circumstances, and in doing so, will consider the following factors:  (1) the frequency of the harassment; (2) the severity of the harassment; (3) whether the conduct was physically threatening or humiliating; and (4) whether the harassment interfered with the plaintiff’s work performance.  This is judged by an objective standard, and not based upon what the employee subjectively feels.

In practice, the harassment or retaliation must be very severe for a constructive discharge to occur.  Minor types of harassment, minor changes in working conditions, or petty slights will not satisfy the standard.  However, if the employer gives the employee the ultimatum to either quit or be fired, the employee will have a good argument that he or she was constructively discharged if they selected the option to quit.

We hope you found this update to be helpful.  Please do not hesitate to contact us should you have any questions.