Constructive Discharge Explained

Constructive discharge, in the context of wrongful termination and employment law in California, is a significant legal concept with intricate implications. Here’s an extensive overview of constructive discharge, its legal backdrop, potential problems, and illustrative examples:

Definition and Legal Framework

1. Constructive Discharge: It occurs when an employee’s resignation or retirement is so heavily influenced by the employer’s unlawful conduct that it can be considered a termination. Essentially, the working conditions become so intolerable that a reasonable person in the employee’s position would feel compelled to resign.
2. Legal Basis in California: This concept is primarily governed by the California Fair Employment and Housing Act (FEHA) and interpreted through various court decisions. FEHA prohibits employment practices that discriminate based on specific protected characteristics.

Application in Legal Context

1. Requirements for Constructive Discharge: To establish a claim, an employee must demonstrate:
   • The employer’s conduct effectively altered the conditions of employment.
   • The conduct was severe or pervasive enough to create a hostile work environment.
   • A reasonable person in similar circumstances would feel compelled to resign.
2. Relation to Wrongful Termination: Constructive discharge is often linked with wrongful termination claims, where the resignation is a result of discrimination, harassment, or retaliation.

Legal Consequences

1. For Employees: If constructive discharge is proven, the employee may be entitled to damages similar to those in wrongful termination cases, including lost wages, benefits, emotional distress, and sometimes punitive damages.
2. For Employers: Employers found liable for constructive discharge face similar penalties to those in wrongful termination cases, including financial damages, legal fees, and potential reputational harm.

Problems and Challenges

1. Proving Constructive Discharge: Establishing that working conditions were intolerable is subjective and challenging. The burden of proof lies heavily on the employee.
2. Interpretation of “Intolerable” Conditions: Determining what constitutes intolerable conditions can vary greatly depending on the specifics of the case.
3. Employee’s Decision to Resign: The timing and decision-making process of the employee’s resignation are critical factors and can complicate the case.
4. Documentation and Evidence: Both parties must thoroughly document events and communications, which can be complex and contentious.

Examples

1. Example of Constructive Discharge: An employee is subjected to severe and ongoing sexual harassment, and despite complaints, the employer fails to take appropriate action. Feeling unsafe and stressed, the employee resigns. This scenario could constitute constructive discharge.
2. Example of Non-Constructive Discharge: An employee resigns due to general dissatisfaction with new management policies that are applied uniformly to all employees. This situation likely would not meet the criteria for constructive discharge.

Conclusion

Constructive discharge is a complex area of employment law in California, requiring a nuanced understanding of the conditions that can make a resignation effectively a termination. Both employees and employers must be aware of the legal thresholds and implications of such scenarios. Due to the complexities involved, legal advice from experts in employment law is often crucial in navigating and resolving these issues.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2510. “Constructive Discharge” Explained

New June 2012; Revised May 2019, May 2020

Directions for Use

Give this instruction with CACI No. 2401, Breach of Employment Contract—Unspecified Term—Actual or Constructive Discharge—Essential Factual Elements, CACI No. 2500, Disparate Treatment—Essential Factual Elements, CACI No. 2505, Retaliation, CACI No. 2540, Disability Discrimination—Disparate Treatment—Essential Factual Elements, CACI No. 2560, Religious Creed Discrimination—Failure to Accommodate—Essential Factual Elements, or CACI No. 2570, Age Discrimination—Disparate Treatment—Essential Factual Elements, if the employee alleges that because of the employer’s actions, the employee had no reasonable alternative other than to leave the employment. Constructive discharge can constitute the adverse employment action required to establish a FEHA violation for discrimination or retaliation. (See Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253 [76 Cal.Rptr.3d 632].)

Sources and Authority

• “[C]onstructive discharge occurs only when an employer terminates employment by forcing the employee to resign. A constructive discharge is equivalent to a dismissal, although it is accomplished indirectly. Constructive discharge occurs only when the employer coerces the employee’s resignation, either by creating working conditions that are intolerable under an objective standard, or by failing to remedy objectively intolerable working conditions that actually are known to

CACI No. 2510          FAIR EMPLOYMENT AND HOUSING ACT

the employer. We have said ‘a constructive discharge is legally regarded as a firing rather than a resignation.’ ” (Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731, 737 [63 Cal.Rptr.2d 636, 936 P.2d 1246], internal citations omitted.)

• “Actual discharge carries significant legal consequences for employers, including possible liability for wrongful discharge. In an attempt to avoid liability, an employer may refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit. The doctrine of constructive discharge addresses such employer-attempted ‘end runs’ around wrongful discharge and other claims requiring employer-initiated terminations of employment.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244 [32

Cal.Rptr.2d 223, 876 P.2d 1022].)

• “Standing alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing.” (Turner, supra, 7 Cal.4th at p. 1251.)
• “In order to amount to constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable. In general, ‘[s]ingle, trivial, or isolated acts of [misconduct] are insufficient’ to support a constructive discharge claim. Moreover, a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge.” (Turner, supra, 7 Cal.4th at p. 1247, internal citation and footnotes omitted.)
• “In some circumstances, a single intolerable incident, such as a crime of violence against an employee by an employer, or an employer’s ultimatum that an employee commit a crime, may constitute a constructive discharge. Such misconduct potentially could be found ‘aggravated.’ ” (Turner, supra, 7 Cal.4th at p. 1247, fn. 3.)
• “Although situations may exist where the employee’s decision to resign is unreasonable as a matter of law, ‘[w]hether conditions were so intolerable as to justify a reasonable employee’s decision to resign is normally a question of fact. [Citation.]’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 827 [166 Cal.Rptr.3d 242].)
• “[T]he standard by which a constructive discharge is determined is an objective one—the question is ‘whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.’ ” (Turner, supra, 7 Cal.4th at p. 1248, internal citations omitted.)
• “[U]nder Turner, the proper focus is on the working conditions themselves, not on the plaintiff’s subjective reaction to those conditions.” (Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1272 [227 Cal.Rptr.3d

695], original italics.)

• “The length of time the plaintiff remained on the job may be one relevant factor in determining the intolerability of employment conditions from the standpoint

FAIR E            CACI No. 2510

of a reasonable person.” (Turner, supra, 7 Cal.4th at p. 1254, original italics.)

• “[T]here was, as the trial court found, substantial evidence that plaintiff’s age and disability were ‘substantial motivating reason[s]’ for the adverse employment action or actions to which plaintiff was subjected. But the discriminatory motive for plaintiff’s working conditions has no bearing on whether the evidence was sufficient to establish constructive discharge.” (Simers, supra, 18 Cal.App.5th at p. 1271.)
  • “In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. [¶] For purposes of this standard, the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.” (Turner, supra, 7 Cal.4th at p. 1251.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§ 238

Chin et al., California Practice Guide: Employment Litigation, Ch. 4-G, Constructive Discharge, ¶ 4:405 et seq. (The Rutter Group)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01 (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.34 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, § 249.15 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful Termination and Discipline, § 100.31 et seq. (Matthew Bender)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.