Is Constructive Discharge a Form of Wrongful Termination?

Employment and the Issue of Termination

Work termination in employment law usually refers to the intentional act of an employer to terminate or end an employee's employment. In Iowa, which is an "at will" state, most employer and employee work at the convenience of each other but does so on an ongoing basis which is not defined or set to a specific time period. Each party has the right to end the employment contract at their convenience. Each party thus enjoys the right of termination. This is called termination for convenience.  

Termination for Cause

Termination can also occur, of course, when one party is in breach of the employment contract. This can happen when an employee fails to perform the work in a satisfactory manner, fails to perform the work, and/or creates a condition in the workplace that makes the work and/or work unsafe or at risk. Similarly, an employer can breach the employment contract by failing to pay as agreed, extending the scope or length of work, or creating an unsafe or unhealthy condition at work.  

A termination based upon a breach of contract is called termination for cause. This termination can result in loss of employment income or damages at law to either party. In the alternative, a termination was alleged for a cause that was not called wrongful termination. This, too, can be a cause for damages at law in the case of a lawsuit.  

Constructive Discharge

But what happens when an employer places an employee in a position where they are either at an unreasonable risk or prospective harm not contemplated by the employment agreement or by one or both of the parties to the contract? And what further happens if the employee reacts to quitting under this type of condition? This type of quitting is, in fact, not willful but necessary to avoid an intolerable working condition and is referred to as "constructive discharge." – a termination made by creating an unacceptable working condition that would make a reasonable person quit the job.  

Examples of Constructive Discharge  

Constructive discharge thus happens when an employee involuntarily quits or offers a resignation when an employer intentionally makes the work conditions so intolerable it forces the employee to resign. This can happen in the case when the employee is placed under duress and forced to work in unacceptable conditions, such as in work conditions that lack proper heating, water, and sanitation. It can also happen when an employee is placed in an unsafe or higher-than-normal risk condition. It can also happen when an employer acts or creates a condition that is contrary to public policy.    

Constructive Discharge When the Employer Action is Contrary to Public Policy

There are laws to address that matter both at the state and the federal level. At the state level, constructive discharge occurs when an employer knowingly creates a condition contrary to public policy or statutory code and does with the knowledge that this condition will adversely affect an employee.    

In one case, the court stated that a case for constructive discharge must contain an allegation that the Plaintiff was discharged. Second, the discharge was in retaliation against the Plaintiff, and third, the discharge violates a clear mandate of public policy. Examples of violations of public policy are discharging a licensed laboratory chemist who complains to the CEO that the company plant is breaking the local environmental law or discharging a medical doctor for refusing to engage in a risky operation.  

The courts of Illinois have taken an expansive interpretation of this definition, even to include an act of employee discharge that was done in a noticeably unfair or abusive manner, noting that if an employer discharges an at-will employee directly in a way to makes the discharge one that world defy reasons and fairness to immunize the employer from constructive discharge.    

In another case, when an employee was demoted without reason but was intentionally done to humiliate the employee, this constituted constructive discharge. The critical test here is the reasonable person test, as when a reasonable employee would deem the change of working condition so unpleasant, complex, or intended to shame, this would be sufficient to constitute constructive discharge. Elsewhere, the courts have noted that a coerced resignation in lieu of being fired constitutes constructive discharge.    

Still, in another case, the court applied the tort of constructive discharge when an employer obtained the resignation from a weaker-willed and socially unsophisticated employee by threatening her with firing to the extent that her subsequent resignation amounted to a form of employer wrongful termination or constructively discharged. In another instance, the court recognized the existence of constructive discharge when an employer repeatedly refused to allow an employee sufficient time off in order to seek medical care: thus, the refusal of an employer to allow an employee to use medical leave, use existing paid leave, deny time off for medical and legal reasons all can constitute constructive discharge.  For more general information on employment law read our article, Illinois Employment Law Changes.  

The Discharge Must Be Real and Not Merely Threatened

Courts have also held that the discharge must have happened as a fact and that the tort of constructive discharge does not refer to retaliation that is merely threatened. The threat must be carried out.  

One further point; if the constructive discharge were undertaken with a discriminatory motive, this would be the action in the forum as civil rights. Both the Illinois state courts and the federal courts recognize this specific form of constructive discharge.  

At the federal level, the Equal Opportunity Commission has stated that if the conditions of work are such that a reasonable person acting in the complainants' position would find the conditions intolerable and that such intolerable work condition results in conduct that constituted discrimination against the compliant, the complainant's quitting is constructive discharge. This is an ethic, national origins, and sexual orientation component to it in addition to mere constructive discharge.  

As with any employment lawsuit, the burden of proof lies with the Plaintiff, who must prove the tort in accordance with a preponderance of the evidence standard.  

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