November 1, 2018

Sometimes employees are faced with working conditions that are so intolerable, they are effectively forced to quit their job.  This is called “constructive discharge” and is legally regarded as a firing by the employer rather than a voluntary resignation.  An employee cannot however just “quit and sue,” claiming to be constructively terminated.  A constructive discharge claim requires an employee to prove by a preponderance of the evidence “that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.”  [Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 (emphasis added).]  In other words, the test is “whether a reasonable person faced with the alleged intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.”  [Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1305.]

This test is an objective standard rather than the employees’ subjective point of view.  “An employee may not be unreasonably sensitive to his working environment. …  Every job has its frustrations, challenges, and disappointments. …  An employee is protected from …  unreasonably harsh conditions, in excess of those faced by his co-workers.  He is not, however, guaranteed a working environment free of stress.”  [Turner v. Anheuser-Busch, Inc., supra at 1247 (citing Goldsmith v. Mayor and City of Baltimore (4th Cir.1993) 987 F.2d 1064, 1072).]

What are considered “intolerable” working conditions?

Adverse working conditions that are unusually “aggravated” or amount to a “continuous pattern” of objectionable conduct (uncorrected by management) are deemed intolerable.  [Turner v. Anheuser-Busch, Inc., supra at 1247; Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1171 – 1172.]  Generally, single, trivial or isolated acts are insufficient to support a constructive discharge claim, “and a poor performance rating or a demotion, even when accompanied by a reduction in pay, does not by itself trigger a constructive discharge.”  [Turner v. Anheuser-Busch, Inc., supra at 1247.]  Although in some cases, single or isolated acts may be held to be “aggravated” when, for instance, an employee is attacked by his employer or given an ultimatum by the employer to commit a crime.  [Id.] Ultimately, the circumstances surrounding an employee’s resignation “must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.  The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.”[Id. at 1238.] This standard for constructive discharge requires a higher degree of harassment than required by a Title VII hostile environment harassment claim.  [Chin, et al., Cal. Prac. Guide Employment Litigation  (The Rutter Group 2016) ¶ 4:420.]

Below are some examples that may compel a reasonable employee to resign, and in certain circumstances, may be considered intolerable working conditions:

• Continued harassment due to an employee’s sexual orientation, or other protected characteristic under Title VII.
• Continued harassment/retaliation due to an employee’s complaints of illegal working conditions or treatment at work.
• A supervisor or manager’s continuous pattern of yelling and screaming, picking on an employee, going out of their way to make life difficult for an employee, unfairly and harshly criticizing an employee calculated to embarrass them in front of other employees, and threatening to terminate or demote an employee, uncorrected by upper management.  However, without “continuous” mistreatment, employers are generally allowed to act in this manner toward their employees.  [Thompson v. Tracor Flight Systems, Inc., supra at 1171.]
• Reorganization of an employee’s department in a fashion that is disruptive to the employee’s position, duties, status, and reputation.  [Colores v. Board of Trustees, supra at 1308 – 11.]
• Reassignment to menial or degrading work or providing unnecessary assignments that are far in excess of what an employee can accomplish due to practical work restrictions or an employee’s own health restrictions  [Id.; see also Chin, et al., supra, ¶ 4:411.]

Courts will also look at the length of time the employee remained on the job after the onset of the alleged intolerable conditions in determining the “intolerability” of employment conditions from the standpoint of a reasonable person.  [Turner v. Anheuser-Busch, Inc., supra at 1254.]

Employer must have actual knowledge of intolerable working conditions.

An employer must have actual (not mere constructive) knowledge of the intolerable working conditions surrounding the employee’s constructive discharge.  This element is easily met if the employer deliberately created the intolerable working conditions, but at a minimum, the employer must know about them and fail to remedy the conditions that would force a reasonable person subject to them to resign.  [Turner v. Anheuser-Busch, Inc., supra at 1249; Chin, et al., supra, ¶ 4:440.] “Express intent” by the employer is not necessary in constructive discharge cases.  The employer’s actions need only be deliberate or, in cases where intolerable working conditions are created by supervisors or co-workers, the employer need only be aware of the situation and permit it to continue.  [Turner v. Anheuser-Busch, Inc. at 1249.]

Employee must give notice of intolerable working conditions.

How can an employee impute knowledge on the part of his employer of the intolerable working conditions where the intolerable working conditions are not created by the employer?  The employee must notify someone in a position of authority of the intolerable conditions before resigning, in order to prevail on a constructive discharge claim.  [Chin, et al., supra, ¶ 4:452.]  This requirement allows employers unaware of any wrongdoing to correct the situation.  It also prevents employers, attempting to avoid liability for wrongful termination by refraining from actually firing an employee, from deliberately ignoring a situation that has become intolerable to a reasonable employee.  [Turner v. Anheuser-Busch, Inc., supra, at 1250.]

Employee must still establish a wrongful discharge claim.

A constructive discharge claim, does not by itself constitute a wrongful discharge claim. Even after establishing constructive discharge, an employee must also prove that the employer’s motivation for forcing the employee to quit was illegal [i.e. based on the employee’s sexual orientation or disability or some other tort or breach of contract] in order to claim damages for wrongful discharge.  An employee may prove, for example, that the employer breached an express or implied employment contract or violated a statutory requirement or public policy, resulting in the employee’s constructive discharge.  [Turner v. Anheuser-Busch, Inc., supra at 1251 – 1252;Colores v. Board of Trustees, supra at 1306 – 07 (“Apart from the terms of an express or implied employment contract, an employer has no right to terminate employment for a reason that contravenes fundamental public policy, as expressed in a constitutional or statutory provision.”)]

Contractual claims are not applicable to at-will employees.

At-will employees have no contractual claim for wrongful discharge based on a constructive discharge on account of intolerable working conditions.  [Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 41.] Since at-will employees can be terminated at any time, for any reason, so long as the reason is not illegal, they have no contractual right to continued employment.  [Chin, et al., supra, ¶ 4:408.] They may, however, have a tort claim if they were terminated for a reason that contravenes public policy.

What should employees do before quitting and claiming constructive discharge?

• Document the intolerable working conditions as they occur.
• Keep track of patterns by your employer of continuous mistreatment.
• Notify your supervisor of the intolerable working conditions. If corrective measures are not taken, notify a member of upper management.
• Contact an employment law attorney to provide you with an objective analysis of your case.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net.)  Please also visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.