The constructive discharge doctrine was created to prevent employers from forcing employees into resigning by engaging in covert, calculated misconduct that would be illegal if it were done overtly. Informally, this may be called a “hostile work environment.”
Constructive discharge is a way employers get rid of an employee without formally terminating the employee. The employer typically alters the employee’s working conditions or creates a working environment that is so intolerable that the employee will quit.
What are the tests/elements of constructive discharge?
An employee wishing to show she was constructively discharged must show:
- she was subjected to intolerable working conditions, judged objectively by a reasonable person standard,
- the intolerable conditions were either created by the employer with the intent of forcing the employee to quit or the employee’s resignation was reasonably foreseeable to the employer,
- the employer was given a reasonable opportunity to remedy the problem, and
- it would have been illegal for the employer to overtly terminate the employee (which is why the employer used these covert methods to get the employee to quit).
See, e.g., Diez v. Minnesota Mining & Manufacturing, 564 N.W.2d 575 (Minn. Ct. App 1997); Pribil v. Archdiocese of St. Paul, 533 N.W.2d 410 (Minn. Ct. App. 1995).
Intolerable working conditions
The inquiry into whether a constructive discharge has occurred is objective: “Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?” Pa. State Police v. Suders, 542 U.S. 129, 141 (2004).
Intent or reasonably foreseeable resignation
The employee claiming constructive discharge may satisfy the “intent” requirement through direct or circumstantial evidence, or the intent can be inferred by showing that the employee’s resignation was a reasonably foreseeable result of the employer’s conduct. See Hukkanen v. International Union of Operating Eng’rs, Hoisting & Portable Local No. 101, 3 F.3d 281, 284 (8th Cir.1993); Pribil v. Archdiocese of St. Paul, 533 N.W.2d 410, 413 (Minn. Ct. App. 1995).
Reasonable opportunity to remedy the problem
To show constructive discharge, an employee must also show that he or she gave the employer a reasonable opportunity to remedy the problem. See, e.g., Anda v. Wickes Furniture Co., 517 F.3d 526, 534 (8th Cir. 2008) (stating that employee must grant employer a reasonable opportunity to correct the intolerable condition before quitting).
Illegal Termination
An employee who alleges constructive discharge must establish the underlying illegality of terminating the employee. See Huyen v. Driscoll, 479 N.W.2d 76 (Minn. Ct. App. 1991) (“constructive discharge is a companion tort”). If the employee is an at-will employee, the discharge has no consequences for the employer unless the discharge was motivated by an unlawful reason. Coursolle v. EMC Insurance Group, Inc., 794 N.W.2d 652 (Minn. Ct. App. 2011) (“The notion that constructive discharge is not an independent, free-standing cause of action follows naturally from the employment-at-will doctrine, which permits an employer to discharge an employee at any time for any reason that is not an unlawful reason.”) For example, this could be a civil rights violation, a whistleblower action, another tort, or a breach of contract. Constructive termination in Minnesota, is not an actionable offense on its own.
What’s the difference between “constructive discharge” and “hostile workplace?”
In simple terms, “constructive discharge” means an employee quit the job but the employee was essentially forced out, so the law treats the employee as fired.
A “hostile workplace” is a job where employees are subjected to offensive words or actions that are so pervasive or persistent that a reasonable employee’s work would be adversely affected.
When an employee quits a job in a “hostile workplace,” the employee might be considered “constructively discharged.” However, the concepts are not directly related and each have their own legal standards.
Is constructive discharge illegal?
No, constructive discharge is not illegal per se. For example, if an employer had a right to terminate an employee but instead offered to reduce the employee’s wages and keep her on. If the employee quit, the employee may be deemed “constructively discharged,” but that wasn’t illegal because the employer was entitled to overtly discharge the employee.
What are examples of constructive discharge?
It is unlawful to discharge an employee in Minnesota in a manner inconsistent with or elaborated in Minnesota Statutes section 363A.08, whether overtly, explicitly, or constructively.
Other examples of constructive discharge might include a demotion, a severe cut in someone’s work hours, the employee being assigned a work schedule that is less desirable and drastically contrary to the one the employee accepted at the time employment commenced, reassignment of the employee to an out-of-state location against the employee’s wishes without additional compensation.
Unlawful discrimination
Unlawful discrimination can create intolerable working conditions. “A constructive discharge occurs when an employee resigns in order to escape intolerable working conditions caused by illegal discrimination.” Continental Can Co., Inc. v. State, 297 N.W.2d 241, 251 (Minn. 1980).
Demotion
A demotion can create intolerable working conditions. See Pa. State Police v. Suders, 542 U.S. 129, 134 (2004) (listing “a humiliating demotion” as an example of “employer-sanctioned adverse action” that may give rise to a constructive-discharge claim); Tadlock v. Powell, 291 F.3d 541, 546-47 (8th Cir. 2002) (concluding that evidence was sufficient to support district court’s finding of constructive discharge when employee was assigned to a different position in a different state and repeatedly communicated his desire to return to his former position, and the company would not permit employee’s return but did not tell him, and after nine months informed employee that the transfer was permanent); Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 919 (8th Cir. 2000) (holding that a transfer constitutes an adverse employment action when it “results in a significant change in working conditions or a diminution in the transferred employee’s title, salary or benefits”); James v. Sears, Roebuck & Co., 21 F.3d 989, 993 (10th Cir. 1994) (“A perceived demotion or reassignment to a job with lower status or lower pay may, depending upon the individual facts of the case, constitute aggravating factors that would justify finding of constructive discharge.”); Mair v. S. Minn. Broad. Co., 226 Minn. 137, 140 (1948) (“[I]f the master deliberately enters into a contract providing for the employment of another as manager, the employee has a right to insist upon retaining that grade, in the absence of any showing which would justify the master in reducing the rank of the servant.”).
What is other helpful information on constructive discharge?
Conduct that establishes a constructive discharge may also support an award for damages of emotional distress.