Statue of justice

Should I Stay or Should I Go?

The Employee’s Burden of Proving “Constructive Discharge”

One of the most difficult decisions you may face is whether to quit your job. We suggest that you

consult with an attorney before making that decision. It’s important to understand whether the facts of

your case and the applicable law will help or hinder a viable legal claim against the employer.

In cases of intentional discrimination or retaliation, the employee must prove the separation or other

detrimental action suffered was because of unlawful conduct. In some cases there are both unlawful

and lawful (yet horrendous) actions that come into play and impact the work environment.

Many employees suffer harassment, discrimination or retaliation in the workplace. Yet, some types of

harassment, discrimination or retaliation are legally actionable, and some are not.

In the case of a termination by the employer, the employee must show the termination was due to

unlawful harassment or discrimination on the basis of a protected attribute, or the termination was in

retaliation for engaging in protected activity or for participating in a protected proceeding.

Some forms of workplace conduct may be horrific and immoral, yet not legally actionable. For example,

workplace favoritism, a manager disliking an employee for personal reasons, and an employee being

disfavored on account of “office politics” are all reprehensible, but not necessarily legally actionable.

The employee must show the conduct was unlawful and that he or she was harmed by such.

The same caveats against quitting apply to retaliation claims. Again, not all forms of workplace

retaliation are actionable.

Typically, unlawful workplace retaliation occurs when an employer retaliates against an employee in

response to an employee: i) complaining of unlawful discrimination (on the basis of a protected

attribute), or ii) participating in an internal or external protected activity (an employer investigation, an

EEOC investigation or a court proceeding relating to unlawful discrimination).

In the case of a termination, demotion, or a loss of benefits or tangible opportunities due to unlawful

discrimination, the employee prevails if he or she shows that such actions by the employer amount to a

“tangible employment action.” And in the case of a termination, demotion, or a loss of benefits or

tangible opportunities due to unlawful retaliation, the employee prevails if he or she shows that such

actions by the employer amount to an “adverse employment action.”

An employee who quits must show the employer’s actions against the employer justified the employee

quitting his job. If the employer takes the requisite action to terminate the employee, proof that an

unlawful termination which was initiated by the employer provides the requisite showing that the

employee suffered a “tangible employment action” or an “adverse employment action.”

In the case of a voluntarily quit, the employee assumes an additional burden of proving the unlawful

working conditions were so intolerable that no reasonable person could endure such. This is known as

a “constructive discharge.” In essence, the employee assumes the burden of proving that a “tangible

employment action” or an “adverse employment action” prompted him or her to quit. Attempting to

convince a federal or state judge that you have satisfied this legal burden may be an onerous task.

Separate from federal statutory discrimination and retaliation claims, Colorado state law recognizes

certain “wrongful discharge in violation of public policy” claims (e.g., discharging an employee for filing a

claim for workmen’s compensation benefits). In some cases, the courts have evaluated whether a

“constructive discharge” may satisfy the termination element of such claims. Proving that the employer

terminated the employee generally is less problematic than the employee proving that he or she had no

choice but to quit (constructive discharge).

The decision to quit your job is a personal decision that only you can make. You should fully weigh your

familial, personal, professional and financial circumstances before deciding one way or the other. You

should consult an attorney before making that decision. You will have a better sense of the strength or

weakness of your claims, at that time, if you decide to quit.