- Let's take a look at constructive discharge. Disputes over whether an employee quit or was fired are not uncommon. If an employee truly resigns of his own volition, the employee cannot sue for wrongful termination.

However, an employer cannot get around the law by creating intolerable working conditions designed to force an employee to quit, a scenario known as constructive discharge. If, under the circumstances, a reasonable person would have felt compelled to quit, courts will construe the resignation as a termination and a claim for wrongful termination can still be brought.

Factors that courts examined to determine whether an employee who resigned was constructively discharge include demotions or cuts in salary, reductions in job responsibility, harassment or humiliation calculated to encourage resignation, offers of early retirement on unfavorable terms. A resignation that occurs when an employee is presented with the stark option of resigning or being immediately terminated can constitute a constructive discharge.

Courts consider in these cases whether the employee was given any alternative to resignation, was allowed a reasonable amount of time in which to make a choice, and was permitted to select the effective date of the resignation.

Constructive discharge is not a wrongful discharge claim in itself. Instead, a finding that an employee was constructively discharged allows the employee to bring any legal claims that would be available had she been formally terminated.

The nature of constructive discharges and the incredible lengths to which some employers go to drive employees out lends itself to another legal claim. One strong possibility is harassment. Another is infliction of emotional distress.

Clearly, employers should not attempt to avoid terminations by creating intolerable conditions designed to force employees to quit. Nor should employers attempt to obtain resignations when terminations are already impending.

Attempting to force employees out might give rise to additional claims of harassment or infliction of emotional distress.