To sustain a constructive discharge claim, an employee must show that the working conditions that caused them to resign were sufficiently extraordinary and egregious so that a reasonable person would be compelled to resign. In addition, the employee must notify the employer of these conditions prior to resigning.1

A resignation in the face of such intolerable conditions is treated as being the same as an actual discharge.

Your most effective defense against constructive discharge claims may be an “open door” policy, that management treats seriously. Document and address employee concerns in an appropriate manner.

In two recent court decisions involving the same employer, both former employees showed their supervisor created persistent, intolerable working conditions based on their age and national origin that they had no option but to quit. The employees, both of whom spoke English as a second language, claimed their supervisor continually criticized their speech, grammar and accent, called them stupid, continually said she was surprised any of the employees got their jobs done because they don’t speak English well, and developed schemes to get the employees fired.

Although the trial court ruled for the employer before the case went to trial because the employees were not terminated but instead quit, the appellate court reversed, allowing the case to proceed to trial, finding the employees presented enough evidence to show that their working conditions were so intolerable that any reasonable employee in their position would have resigned.2

In King v. AC&R Advertising, the Ninth Circuit Court of Appeals ruled that renegotiating a compensation agreement does not create sufficiently intolerable working conditions to sustain a constructive discharge claim.3 Similarly, a demotion, even if accompanied by a reduction in pay, does not trigger a constructive discharge claim.4

In Green v. Brennan, the United States Supreme Court ruled that when an employee resigns in the face of intolerable discrimination, the resignation itself is part of the alleged discrimination. The time period for filing a constructive discharge claim “begins running only after the employee resigns.” Even if suffering intolerable conditions, an employee may have financial or other circumstances that force them to stay for a period of time.

This means the clock starts when the employee gives definite “notice” of his or her resignation, not the date the resignation is effective. For example, if the employee gives two weeks’ notice, the clock starts to run on the day he tells his employer, not two weeks later on the employee’s last day of work.5

1. Gibson v. Aro Corporation, 32 Cal. App. 4th 1628 (1995); Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238 (1994)