Quitting a job is never easy—but when your employer has either caused or knowingly permitted an intolerable work environment, your resignation might not be considered voluntary in the eyes of the law. In fact, you may be a victim of constructive termination.
At Makarem and Associates, we are dedicated to helping employees understand their rights and assert them. This post will discuss what constructive termination is and how to recognize if you’ve been forced to resign due to unlawful or intolerable working conditions.
Constructive Termination: How Does it Differ From Actual Termination?
Constructive termination occurs when an employer intentionally created or allowed such an intolerable work environment that their employee was effectively forced to resign.
Unlike actual termination, where the employer terminates the employment, constructive termination occurs when the employee terminates the employment, but due to something that the employer either caused or permitted.
While constructive termination seems facially voluntary, the law views constructive termination as if the employer effectively forced an employee’s resignation (or in other words, fired them,) by creating an intolerable work environment.
Requirements for Constructive Termination
Constructive termination is found when these elements are met:
- The employer caused or knowingly permitted working conditions that were so intolerable that an objective, reasonable person in an employee’s position would have no reasonable alternative except to resign; AND
- An employee actually resigned due those intolerable working conditions
What Types of Conduct and Practices Can Lead to Constructive Termination?
Some common workplace scenarios that may qualify for constructive termination include, but are not limited to:
- Persistent Harassment and/or Discrimination:
Example: An employee reports to HR that their co-worker has been persistently harassing or discriminating against them based on a protected characteristic, such as their race, gender, age, sexual orientation, or disability. However, HR takes no action. Feeling unsafe and unsupported, the employee resigns.
Example: A Latina employee is repeatedly passed over for promotions in favor of her less-experienced white male colleagues. Her manager also makes derogatory comments about her accent and cultural background, such as, “Try not to sound so ethnic in meetings,” and, “We need someone more polished to present to clients.” After filing a formal complaint with HR, the hostile treatment worsens. Her workload increases dramatically, deadlines are shortened, and she is publicly reprimanded for minor mistakes. HR takes no corrective action, and the discriminatory behavior continues. Eventually, the employee resigns, citing the ongoing racial and gender discrimination, the hostile work environment, and the employer’s failure to act.
- Significant Reduction in Pay or Benefits:
Example: An employer cuts an employee’s salary by 40% without any business justification or consent. The employee resigns because their job can no longer financially support them.
Example: An employer suddenly reduces an employee’s hours from 40 per week to 7 without any business justification or consent. Again, the employee resigns because their job can no longer financially support them.
- Demotion Without Cause:
Example: An employer demotes their senior manager to an entry-level position without any explanation or performance-related justification. Feeling demoralized and professionally undermined, the employee resigns.
- Hostile Work Environment:
Example: An employee is repetitively bullied and belittled by their supervisor in meetings and emails, causing them to resign.
Example: An employee experiences persistent, excessive and aggressive verbal harassment from co-workers. The employee reports this behavior to HR, but HR fails to take any corrective action. Feeling unsafe and unsupported, the employee resigns.
- Forced Transfer or Relocation:
Example: An employer tells their employee that they must relocate to a branch in a different state or take a different position within the company with worse conditions. They are told that if they refuse the relocation or transfer, they will immediately lose their job. Unwilling to comply with their employer’s demand to transfer or relocate, the employee resigns.
- Unsafe or Unlawful Working Conditions:
Example: An employer refuses to fix dangerous equipment that has caused injuries. Instead, the employer insists that the employee continues using it. Fearing for their safety, the employee resigns.
Example: An employer consistently fails to guarantee its employees their legally mandated rest and meal breaks. One employee makes repeated complaints to her manager and HR about the issue, but to no avail. Eventually, the employee becomes physically and emotionally exhausted. She resigns, citing the continued denial of her legal right to rest breaks as her reason for quitting.
- Employer Retaliation:
Example: An employee reports a supervisor’s inappropriate conduct to HR. In response, the employer strips the employee of their key job responsibilities, excludes the employee from meetings, and gives the employee unfairly negative performance reviews. Feeling overworked, isolated, and stressed, the employee resigns.
Example: An employee files a worker’s compensation claim. The employee is suddenly given more difficult tasks, subjected to regular public criticism and micromanagement, and passed up for a promotion they met the qualifications for. Feeling targeted and humiliated, the employee resigns.
- Failure to Accommodate Disabilities:
Example: An employee with medically documented carpal tunnel syndrome makes a formal request under the Americans with Disabilities Act for an ergonomic keyboard and reduced typing hours. Management acknowledges receipt of the employee’s requests but ultimately denies the requests. The employee is forced to continue to work without his accommodations, and later resigns due to the physical pain and psychological toll of being denied reasonable accommodations for his disability.
Example: An employee is diagnosed with a chronic medical condition that occasionally flares up, requiring her to work from home a few days per month. Her doctor provides documentation, and she formally requests to work from home a few days per month as a reasonable accommodation under the Americans with Disabilities Act (ADA). At first, the employer approves the employee’s request. But the employee soon finds herself excluded from key projects and meetings, told that she’s “not reliable enough for leadership roles,” and pressured to return to full in-office work despite her condition worsening. The employee files internal complaints about these issues with HR, but nothing changes. Eventually, the employee resigns, finding that her work environment has become so hostile and dismissive of her health needs that she can no longer continue working there.
- Failure to Provide Adequate Accommodations Employees are Legally Entitled to:
Example: A pregnant employee informs her employer that she plans to take her full 12 weeks of FMLA (Family and Medical Leave Act) protected maternity leave. The employee’s leave is approved. But while the employee is on leave, her responsibilities are permanently reassigned to a junior colleague. When the employee returns to the office, she’s moved to a smaller desk, stripped of high-profile projects, and excluded from meetings she’d previously led. Feeling humiliated, sidelined, and without a meaningful role, the employee resigns.
Example: An employee’s eight year old son is diagnosed with a severe condition requiring frequent doctor visits, therapy, and occasional hospital stays. The employee qualifies for CFRA (California Family Rights Act) leave to care for his son, and he uses it intermittently with proper documentation. After the first few absences, the employee’s manager starts making hostile comments, such as, “You really need to get your family situation under control,” and, “We need people who can commit 100% here.” The employee is denied a promotion he was previously promised, and his workload is quietly reduced. HR discourages him from taking further leave, implying it could “affect his future here.” After his son is hospitalized again, the employee takes another brief CFRA-approved absence. When he returns, he finds his desk moved to a back corner and his responsibilities reassigned without explanation. Feeling humiliated, pushed aside, and unwelcome, the employee resigns and cites the discriminatory treatment related to his child’s disability and his protected leave.
- Refusing to Engage in or Reporting Illegal Conduct:
Example: An accountant is instructed by their supervisor to falsify financial records. The accountant resigns, unwilling to participate in illegal conduct.
Example: An accountant discovers that upper management has been violating SEC regulations. The accountant reports her discovery internally through the company’s compliance hotline and externally to the SEC. Shortly after the accountant’s disclosure, her workload is drastically increased without additional support, she is reassigned to a smaller, less meaningful role, and she is excluded from important meetings she previously led. Feeling overworked and professionally undermined, the employee resigns.
- Ignoring or Undermining Employee Rights
Example: A warehouse worker tries to organize a union, which is a legally protected activity under the National Labor Relations Act. After management finds out about the worker’s efforts, the worker’s supervisor suddenly gives him given an unmanageable workload, writes him up for minor infractions like “talking too long on breaks,” and gives him bad performance reviews, despite the worker previously having positive work evaluations. The pressure, humiliation, and stress become unbearable, leading the worker to resign.
Example: An employee repeatedly works 10+ hour days and is misclassified as exempt, even though her duties are routine and lack independent judgment—she should be entitled to overtime pay under California labor law. She politely raises this issue with HR. HR acknowledges the employee’s concerns but tells her, “This is just how we operate—you should be grateful you have a job.” The employee then notices that the company is deducting pay for sick leave without following the required notice procedures under California’s paid sick leave law. The employee files a written complaint to the HR director, asking for clarification and a resolution. Instead of addressing it, the company begins excluding the employee from team meetings, assigns her excessive tasks, and nitpicks her performance daily. Her stress levels rise, and she begins to dread coming to work. Feeling targeted and unsupported, the employee resigns, stating that the employer’s ongoing disregard for her legal rights and the hostile treatment following her complaints left her no choice.
- Sexual Battery or Assault
Example: An employee’s manager makes repeated inappropriate comments about his appearance. One evening at a company event, the employee’s manager touches him without consent and later sends him sexually explicit messages. The employee immediately reports the incident to HR, but instead of supporting him, HR tells him to “keep it quiet” to protect the company’s reputation. There is never an investigation launched. The employee’s manager remains in her position. Feeling unsafe and unsupported, the employee resigns and cites sexual misconduct in his resignation letter.
Constructively Terminated? Get Help Today.
Leaving a job is a major decision, especially when it feels like you’re being pushed out. But if your employer has created an intolerable work environment, quitting might not be giving up— it might be standing up. If you believe that you were constructively terminated or are currently facing conditions that may meet constructive termination standards, don’t hesitate to contact the experienced employment law attorneys at Makarem & Associates. We are dedicated to providing counsel, protecting your rights and ensuring that you receive the justice you deserve. Call 800-610-9646 or complete an online contact form to schedule a free consultation today.
