When subjected to harassment or discrimination at work, different people respond in different ways. Under certain circumstances, some employees feel they have no other choice than to resign. Unfortunately, it can be very difficult for those who do so to then bring a successful claim against their former employer for lost wages. To recover actual damages for lost wages, an employee who quits as opposed to being fired must argue they were constructively discharged – the legal term for forced to resign.

Obviously, if your employer tells you to quit or be fired, constructive discharge would apply. However, such a clear ultimatum is not often the case. More common is when an employee finds themself in a situation where they are being subjected to harassment or discrimination and can simply take no more. Often, these workers have already complained to management or human resources and nothing has been done. Indeed, it may even be that the employer is trying to get the employee to quit.

Many employers believe they will not be held liable if they do not fire the employee. So, instead of firing an employee, the employer will allow harassment and discrimination to continue in hopes that a complaining employee will quit. This belief is based on the fact that, generally, whichever party causes the separation is the party who is responsible for any associated damages. In other words, the presumption is, if employer fires employee, employer caused the separation. Conversely, if an employee quits, employee caused the separation. However, under certain circumstances, this presumption can be overcome. 

The question the court must ask to determine if an employee’s resignation was a voluntary resignation or constructive discharge is: “Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?” Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004) (citations omitted). Importantly, this analysis is meant to be objective, not subjective. It is about what a reasonable person would do, not what the actual person who quit thought was reasonable. 

Moreover, the standard to prove constructive discharge is meant to be a higher threshold than proving harassment or discrimination. In other words, just because an employee proves their employer subjected them to severe or pervasive harassment or discriminated against them, the employee has not by default proved constructive discharge. In the eyes of the law, not all harassment or discrimination creates circumstances under which a reasonable person would quit their job. For example, a female employee who is being paid less than her male colleagues on the basis of her sex may have a valid sex discrimination claim but would not likely have a valid claim for constructive discharge if she decided to resign because of the unequal pay. See Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61 (5th Cir. 1980).  

A successful constructive discharge claim requires something more than harassment or discrimination. Specifically, something more could be: (1) being demoted, (2) having your pay cut, (3) reducing your job responsibilities, (4) being reassigned to degrading or menial work, (5) being reassigned to work under a younger supervisor for age discrimination claims, (6) being subjected to harassment that is calculated to encourage resignation, or (7) being offered early retirement or continued employment on less favorable terms. The more factors that are present in any particular case, the higher the likelihood of successfully arguing a resignation was really constructive discharge. 

Overall, constructive discharge claims are difficult. Courts are fairly hostile to the concept, and for the most part, in Texas, juries are too. Accordingly, if you are considering quitting your job because of ongoing harassment or discrimination, you should contact an employment lawyer prior to resigning from your position. At a minimum, consulting with an employment lawyer prior to resigning will allow you to discuss the pros and cons of all your options and allow you to make an informed decision.