What is Constructive Dismissal?

Submitted by eric on Wed, 09/28/2022 - 15:57

Constructive dismissal may be considered a particular form of employment termination in which an employee is so intimidated by the conditions experienced in the workplace that they voluntarily resign.

In most states, the particular conditions in which a voluntary resignation occurs may be considered the same as termination. If the termination violated an employment agreement or in one way or another breached discrimination or unfair termination laws, then the employee may have grounds for legal action against the employer.

What Are Examples of Constructive Dismissal?

The reasons why an employee may resign because of a hostile work environment may include any of the following.

  • The employee has faced ongoing discrimination against them because of their age, gender, sexual orientation, ethnic group, religion or because they belonged to any other protected class according to state or federal anti-discrimination laws;
  • They had refused to carry out illegal activities in their workplace or brought illegal activities; i.e. they faced hostility because they had acted as a whistleblower;
  • They had applied for or taken leave under the Family and Medical Leave Act (FMLA) or claimed workers’ compensation after having suffered a workplace injury or illness.
  • The employee had taken time off work to vote, carry out jury service or serve in the military.

What Laws Protect Me from Constructive Dismissal?

A number of federal and state laws prohibit wrongful termination and therefore also apply to constructive dismissal. Each state has its own laws, and these vary somewhat from one to the other.

Title VII of the Civil Rights Act 1964, and amendments to it, protect employees from discrimination against them at work, harassment of employees because they belong to a protected class and constructive dismissal/ wrongful termination because they belong to a protected class.

Most states have similar anti-discrimination laws, but some extend the number of protected classes whereas other states have a more limited interpretation of what is considered a protected class.

What to Do If you have Experienced Constructive Dismissal

Before you resign, you must bring your concerns about the workplace environment to your supervisor, manager or employer, explaining how it makes you feel.

The more evidence you have that the conditions causing you to resign were intolerable and existed even though your employer was aware of it, the more likely your case will be considered favorably in court.

If your concerns are not responded to appropriately and you resign, take your complaint to the Equal Employment Opportunities Commission (EEOC), equivalent state body, or the Department of Labor in your state, before considering filing a lawsuit against your employer.

Next Steps to Take

If the EEOC or other state or federal agency cannot resolve your complaint, you may be given permission to file a lawsuit against your employer for constructive dismissal. You will find that an employment lawyer will provide useful legal advice and help.

Additional Resources

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