What Is “Constructive Discharge” in Texas?

1. What is a constructive discharge?

The typical scenario for an employment law case is that the employer has fired the employee. Assuming that the fired worker was an at-will employee, the question is whether the worker has a wrongful termination claim based on discrimination or retaliation.

But what if the employer did not fire the worker, but instead the worker quit? Under some circumstances, this can be treated as a "constructive discharge" -- a voluntary resignation that the law will treat as a termination.

2. Is there an independent legal cause of action for constructive discharge?

No. A constructive discharge claim must be rooted in discrimination, retaliation, or violation of some other legal right. For example, a constructive discharge based on race constitutes race discrimination, while a constructive discharge based on the employee's complaints about race discrimination constitutes retaliation.

Otherwise, the fact that an employer treats an employee so badly that the employee feels compelled to quit does not give rise to any claim. As a general rule, an at-will employee has little or no right to complain about workplace conditions. Instead, the employee's option under the law is to quit. A general discussion of the rights of at-will employees in Texas can be found here.

3. How does the law define a constructive discharge?

A constructive discharge occurs when working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign. This is an objective standard (whether a reasonable person would have felt compelled to resign), not a subjective standard (whether this particular employee actually felt compelled to resign).

4. What sorts of factors do the courts examine in assessing whether a constructive discharge has occurred?

In the context of an age discrimination case, the Fifth Circuit listed a variety of aggravating factors that have often been cited by other courts:

Whether a reasonable employee would feel compelled to resign depends on the facts of each case, but we consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement [or continued employment on terms less favorable than the employee's former status] . . . .

Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000) (quoting Barrow v. New Orleans Steamship Association, 10 F.3d 292, 297 (5th Cir. 1994)). Those aggravating factors are not exclusive. Constructive discharge cases tend to turn on their own facts, rather than on broad legal formulations.

5. Will a hostile work environment support a finding of constructive discharge?

Sometimes. The courts have indicated that the standard for constructive discharge is higher than the standard for a hostile work environment. A minimal showing of a hostile work environment (which is, by itself, a high standard) will not support a finding of constructive discharge. However, if the employee can make a showing of "greater severity or pervasiveness" than the minimum standard, then the employee may be able to meet the burden of proving a constructive discharge.

6. Will a discriminatory work environment support a finding of constructive discharge?

By itself, no. For example, a bad performance review, even if motivated by racial animus, will not support a constructive discharge claim absent a showing of the aggravating factors listed above. Other types of discriminatory conduct -- such as demotions and pay cuts -- are themselves aggravating factors and can support a finding of constructive discharge under appropriate circumstances.

7. Is it necessary that the employer specifically intended to force the employee to quit?

No. Specific intent is not an element of constructive discharge.

8. Is the employee's conduct relevant?

Yes. The courts require that an employee look for alternative means to resolve the issue and not leap to conclusions before quitting. A rash decision to quit is not a constructive discharge. The employee will be expected to take affirmative steps to remedy the situation (such as making a complaint or following the employer's harassment policy) before quitting.

9. How difficult will it be to prove a constructive discharge?

Very difficult. The courts are understandably skeptical of people who quit their jobs. An employee must make an impressive showing to overcome the instinctive reaction of judges and juries that people should remain gainfully employed instead of quitting and filing a lawsuit.

However, many employees have successfully overcome the hurdles to proving a constructive discharge claim.  The key is to understand that alleging constructive discharge is not a mere formality and that selling a constructive discharge theory to a judge or a jury is never a foregone conclusion.  If an employee is relying on a constructive discharge theory, then the facts that support a finding of constructive discharge must be the centerpiece of the case.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

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