Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here. Sometimes, people come to me and say they want to sue for constructive discharge. Constructive discharge is where an employee quits work for good cause. If you would have a case against your employer had they fired you under the same circumstances, then you will also probably have a case against them if a court finds you were constructively discharged.
Most courts are reluctant to find an employee was constructively discharged. The standard is usually that no reasonable employee would have tolerated the conditions of employment. In some states, workers may be able to sue even if the intolerable working conditions did not constitute illegal discrimination or harassment under Title VII. For example, abusive bullying that is not based on a protected category may be considered intolerable working conditions under state law.
In general, if your employer has taken no "tangible action" against you, such as a demotion, pay cut, or the like, you will probably have to show that you reported the working conditions to management and gave your employer a chance to remedy the situation before you resigned. The purpose of this rule is to give employers the opportunity to voluntarily step in and fix the problem, making legal action unnecessary.
Were you forced to quit your job in a way that amounts to constructive discharge? As you can see, this is a complex legal question that must take into account the circumstances of each case.
If you believe you were constructively discharged, talk to an employment lawyer and get a legal assessment of your potential claim. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.
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Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice. Meet the Editors. If you spoke in person, then write down the details of your conversation. Note the date of the conversation, who you spoke to, and what was said.
Get evidence of your emotional distress. For example, you could get the following: [12] X Research source Medical records, if your emotional distress has caused you to lose weight, become anxious, or suffer from depression. Testimony from a therapist or counselor, as well as from family members. A list of prescription drugs used to treat your emotional distress. A journal. You can write down how the harassment has made you feel emotionally.
Note changes to your eating and sleep habits as well as your overall mood. Think about hiring a lawyer. You would benefit from having a lawyer bring the lawsuit for you.
Lawyers are trained in marshalling facts to prove constructive discharge. You can get a referral to an employment lawyer by contacting your local or state bar association. Instead, the lawyer will take a percentage of any amount you win in settlement or at trial. You would still be responsible for paying court costs, such as the cost of filing the lawsuit and for court reporters. Part 2. Check whether to file a charge with the EEOC. At the federal level, the Equal Employment Opportunity Commission EEOC investigates claims of discrimination based on age, disability, national origin, sex, race, religion, color, and genetic information.
They also investigate claims of retaliation for reporting discrimination. Visit an EEOC office to file a charge. You can find a map of offices at the EEOC website. You cannot file a charge over the phone, though you can give information over the phone to begin the process.
Draft your charge. Mail your charge. You should make a copy for your records. Then you should mail it certified mail, return receipt requested to the EEOC office nearest to you. Hold onto the receipt, as it serves as proof that your letter was received. The EEOC has days to investigate your claim. As part of the investigation, it may contact your employer. Because the EEOC is overburdened, the agency probably will not take formal action against your employer.
Once you file a lawsuit, the EEOC stops investigating the complaint. Part 3. Complete an intake questionnaire. In some states it may be advantageous to take your complaint to state agencies instead of the EEOC. For example, in California, employment laws protect employees more than federal laws. To start the complaint process with a state agency, you will usually need to fill out a questionnaire and set up an interview.
The questionnaire and interview will give the state agency an opportunity to assess your claims and collect facts. File your complaint. If your state's employment agency find that egregious action may have occurred, they will draft a formal complaint on your behalf. This complaint will be served on the employer and they will be given an opportunity to answer.
If your complaint falls under EEOC jurisdiction, your state agency may choose to forward information along to them as well. Work with the agency on their investigation.
If a settlement is not reached during the initial filing and answering period, your state employment agency will officially investigate your claim. In California, the DFEH has the backing of state courts and they can issue subpoenas and take depositions and interrogatories. If the investigation fails to uncover a violation of the law, your case will be closed. However, if a violation is found, you will move forward in the complaint process.
Attempt to settle your claim outside of court. A lot of state employment agencies will attempt to broker a settlement in the interest of justice and resources. In California, for example, the DFEH will schedule conciliation conferences and work on your behalf to resolve the issue. DFEH will present their findings to the employer and will attempt to find a resolution. If an agreement can be made, you will avoid litigation and hopefully receive a remedy that is acceptable to you.
Get a right to sue letter. If no settlement is reached, you can ask your state employment agency for a right to sue letter. In California, as in most states, the law requires you to exhaust your administrative remedies before bringing a legal action.
This right to sue letter will prove to the court that you have exhausted your administrative remedies. However, California does offer an exception to this exhaustion rule if you make a written request to skip the administrative process and proceed straight to court. California recommends that you only take this action if you have an attorney to help you. If you do not have an attorney, it is advisable to go through the administrative process so you can build your case through a formal investigation.
Part 4. Analyze what you must prove at trial. As you prepare to file your lawsuit, you need to go through all of your evidence and check that you can support all elements of a constructive discharge claim. For example, go through and check that you have evidence for the following: [19] X Research source You suffered harassment or other illegal treatment. Make sure you can get eyewitnesses to testify and introduce notes, emails, or harassing phone voice mails into evidence.
Individual courses and subscriptions available. Sometimes, people come to me and say they want to sue for constructive discharge. There's no such cause of action or claim. Constructive discharge is where an employee quits work for good cause. This means some claims that you were illegally fired worker's compensation retaliation, retaliation for complaining about discrimination, whistleblower retaliation, adverse action discrimination claims, to name a few are still allowed if you're constructively discharged.
If you would have a case against your employer had they fired you under the same circumstances, then you will also probably have a case against them if a court finds you were constructively discharged. Most courts are reluctant to find an employee was constructively discharged.
The standard is usually that no reasonable employee would have tolerated the conditions of employment.
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