Constructive Discharge in Texas
What is Constructive Discharge?
Constructive discharge is a type of claim of wrongful termination. Constructive discharge occurs when an employer chooses, in lieu of firing an employee, to make the working environment so horrible that the employee is forced to terminate their employment. Constructive discharge is usually harder to prove than a hostile work environment.
If an employee is an at-will employee (which entails that the employer has the ability to fire them at any time at their discretion), then they must prove that they were wrongfully fired based upon discrimination due to age, race, ethnicity, disability, sexuality, sex, gender identity, or based on retaliation if perhaps the person testified to discrimination in the work place.
If the employee quits instead of being fired, it can still potentially be considered constructive discharge, since the conditions could have been made so abhorrent that they needed to leave immediately. Quitting or resigning could be viewed as wrongful termination.
The law defines constructive discharge as a time when workplace conditions become so abhorrent that the average person would have no other option but to quit or resign from the company. This is supposed to show that the normal person would have felt compelled to leave the workplace in question, rather than whether the particular person being investigated needed to.
Does Constructive Discharge Apply if You Quit Only Based on Bad Working Conditions?
If an employer is treating an employee very poorly, hurling verbal abuse, giving them the most difficult jobs in the most secluded areas or the most uncomfortable areas, keeping them from promotions so they must stagnate in the company or move downward, giving them increasingly less significant work, or even neglecting them entirely, and the employee chooses to quit, there is no legal action to take against this.
The law does not protect against mean employers unless discrimination is based upon a protected trait, which in this case it was not. Generally, an employee has minimal to no right to verbally complain about bad workplace conditions.
For a constructive discharge claim to take root, it must be in regards to a protected trait or it must be based on retaliation. The traits that, if discrimination occurs because of them, a constructive discharge claim could be valid, includes:
- Discrimination that is based on age,
- Sexual Harassment,
- Persecution based on religiosity or lack thereof, or any other cultural symbols,
- Provocation based on disability,
- Discrimination due to the race or ethnicity or culture of the person in question.
Another thing to note is that the employer does not necessarily need to be trying to get an employee to quit. If an employee is put into an environment where they should quit based on a lack of promotions, or bad treatment from their higher ups in general, the intent of the employer, whether it is to make them quit or if they are just having a tough time in the company and are having trouble moving things around, is entirely irrelevant. Constructive discharge does not look at intent.
It is, however, necessary to establish that the employer had some knowledge of the horrible conditions which resulted in an employee to quit. If an employer should usually have known about the abhorrent conditions, yet didn’t for some reason, then constructive dismissal would likely not have occurred.
Elements of Constructive Discharge
In proving that an employer was actively trying to prevent an employee from continuing to work at a business by making it a hostile workplace, the courts will look at a myriad of things, including:
- Whether the employee had recently received or was about to receive a demotion,
- If they had recently received a reduction in salary,
- A reduction or vast increase in job responsibilities, which could result in many hours of unpaid overtime,
- Assignment to less significant tasks, such as becoming a copier,
- Assignment to a different, newer supervisor
- Verbal badgering, harassment, or other abuse by an employer or other employees with the goal of termination,
- Offers of changing employment terms to a less favorable state,
- If the employee was required or was requested to be involved with illegal activities, shady business practices, or dealing with illicit substances,
- Whether or not the employer or supervisor or some authority figure within the company actually took the time to investigate the complaints of the employee,
- The amount of time between the employer’s improper conduct and the termination of the employee,
These are the traits that are looked at by courts when reviewing constructive discharge. Things not included in this list are rarely looked at, such as if a hostile work environment is fueled by discrimination, it may count as a hostile work environment claim, but it does not necessarily constitute constructive discharge.
In example, a bad review to a superior means very little on its own even if it was fueled by an ageist agenda, will likely hold very little to no weight if it is not one of the above listed criteria, such as a demotion.
Does Hostile Work Environment Necessarily Constitute Constructive Discharge?
Occasionally this is the case. The standard of proof for constructive discharge is markedly higher though, requiring an even more severe or even more pervasive actions than a hostile work environment requires. A hostile work environment already has a quite high standard of proof though, so proving constructive discharge may be difficult, but is very possible.
It is also important to note that the courts believe it is on the employee to attempt to fix the problem and not assume discrimination before quitting prematurely. A complaint at least is a very needed first step, to secure that the employee attempted to remedy the situation, and yet the employer did nothing to help, and instead allowed them to continue suffering more than other employees.
The employee is responsible for informing the employer about the work conditions decreasing. If the employee does not inform the employer and the employer was not aware of the conditions for whatever reason, then filing a constructive discharge claim would be difficult.