3 Ways You May be a Victim of the Retaliation and Constrictive Discharge Hybrid

posted by Daniel Stevens  |  Jan 1, 2019 6:02 PM [EST]  |  applies to California


3 Ways You May be a Victim of the Retaliation and Constrictive Discharge Hybrid


In a perfect world, employees could go to work knowing they would not be mistreated by their employer or superiors. However, we don’t live in a perfect world and employees are subjected to unspeakable behavior and circumstances often enough that there are employment laws in place that provide employees the right to sue their employers for inflicting unlawful treatment or allowing its occurrence to continue. Employees are sometimes placed in a situation in which they complain about the mistreatment and are punished for it, which is considered retaliation. However, the retaliation does not always result in the employer directly firing the employee. Instead, often time, the employer exposes the employee to work conditions that are so unbearable that the employee will have no choice but to quit.  Does the lack of a direct termination by the employer mean the employer is off the hook? In examining retaliation and constructive discharge, it is inevitable that these two claims go hand-in-hand more often than not to ultimately sabotage an employee’s career, but just because the employee quits doesn’t mean the employer is not liable.  If the circumstance is such that no reasonable person could tolerate the work conditions, the employee may bring a claim for constructive discharge, which is the equivalent of a claim for wrongful termination.


  1. Sexual harassment can lead to unlawful treatment and forced the resignation

What’s considered “intolerable”?  An employee who is seeking a claim against their employer for constructive discharge would need to show that their work environment was so intolerable that they were forced to resign. For example, Max worked in customer service for an internet service provider.  His recently divorced supervisor Debbie, took it upon herself to sexually harass Max by rubbing against him in the copy room as she passed by and often sent him nude photos of herself via email. In addition, Debbie made comments about Max’s buttocks to other employees, making Max a common target in his department for teasing. Debbie continued her behavior towards Max for four months even though Max had complained to HR several times.  Feeling hopeless and suffering from extreme anxiety, Max resigned from his job. Here, Max has a potential claim for sexual harassment as well as constructive discharge because the sexual harassment was ongoing and a reasonable employee in Max’s position would feel compelled to resign.  Also, the fact he complained to HR but the sexual harassment continued, may strengthen his constructive discharge and sexual harassment claims.


In looking at Max’s situation again, let’s say after he complained to HR, they demoted Max to a lower paying position within his department but this new position still kept him under the supervision of Debbie. Based on these added facts, in addition to the sexual harassment and constructive resignation claims, Max may also have a claim for retaliation. Max’s possible claim for retaliation would be based on HR’s response to his complaint about the sexual harassment. Although HR could say they transferred Max to a different position to address his concerns, the fact he was still working under the supervision of his harasser did not remedy the issue.  Moreover, Max’s “transfer” was really a demotion, and thirdly this all happened after Max complained, adding up to HR punishing Max for complaining.  Max’s next step would be to contact an Employment Lawyer to discuss his multiple claims against his employer.


  1. Threats of termination can lead to retaliation and resignation

Another example of intolerable working conditions would be if someone in upper management made constant threats of termination in a hostile, abrasive, and harsh manner. An aggravating factor in a situation such as this would be if the employee experiencing the mistreatment made a complaint about it and nothing was done to address the problem. Here an employee again might eventually be forced to resign because this type of circumstance is considered intolerable, which gives rise to a possible constructive discharge claim. Prior to resignation, if the employee who was experiencing the threats of termination complained to HR or another supervisor and thereafter was singled out, passed up for promotion, demoted, or suffered any other type of deprivation of employee benefits, the employee may also have a claim in retaliation.  An employee who went through something similar would need to contact an Employment Lawyer in their area to discuss the details of their potential case.



  1. An employer asking for the impossible may be a form of retaliation and might lead to a forced resignation

An employee may find himself or herself in a situation where their employer or supervisor gives an order to complete certain tasks that they know are impossible to achieve. But why would an employer have the desire to torture one of their employees by setting him or her up for failure? One common reason would be to cloak their true intention of wanting to force the employee to quit.  A few reasons why an employer would want an employee to quit would be that the employee complained about unlawful pay practices or an unsafe work environment, the employee took a protected medical leave, or perhaps the employee was being discriminated against based on belonging to a protected class.

Putting this all into play, an example would be if an employee took a protected medical leave which his employer was not too pleased about and wanted to find a way to get rid of him upon his return. The employer may do this by threatening the employee’s job unless the employee obtained certain job-related training or certifications. These certifications may not be necessary to carry out required duties nor can the employee attend the training without missing work. In this situation, the employer is actively taking steps to force the employee to resign by subjecting him to intolerable working conditions. In addition, the employer’s initial acts in giving the employee the task of obtaining the bogus certification may be categorized as retaliatory behavior for the employee taking medical leave.

Employees continue to be victimized by employers and or supervisors in the workplace and it is the job of an Employment Lawyer to represent these particular employees. Retaliation and constructive discharge have many features which can hurt an employee’s career but with a strong legal team, an employee may obtain certain remedies available to them under employment laws in California.



Source:  3 Ways You May be a Victim of the Retaliation and Constrictive Discharge Hybrid

Comments (0)

No comments were found for this article.

Have an Employment Law question?

Virginia Employment Lawyers

Matthew Kaplan Matthew Kaplan
The Kaplan Law Firm
Sheri Abrams Sheri Abrams
Sheri R. Abrams PLLC
Oakton, VA
Edward Lowry Edward Lowry
Charlottesville, VA
Gerald Lutkenhaus Gerald Lutkenhaus
Virginia Workers Compensation & Disability Lawyer
Richmond, VA
Matthew Sutter Matthew Sutter
Sutter & Terpak, PLLC
Annandale, VA

more Virginia Employment Lawyers