11/30/2015 05:39 pm ET Updated Nov 30, 2016

A Legal Reason to Complain if You Are Mistreated at Work

Sometimes employees are either afraid to complain about mistreatment or believe that a complaint will be meaningless. However, this is a legal mistake. In law, the word "constructive" means "the equivalent of." Consequently, an employee made so miserable at work that there is no reasonable alternative but to quit may have experienced "constructive discharge" (also called "constructive dismissal"). Sometimes employers and employees mistakenly believe that there must always be a formal firing to trigger a variety of illegal discrimination and unlawful retaliation claims. Consequently, the reasoning goes, making an employee sufficiently miserable so that she or he "voluntarily" quits will absolve the supervisor or employer of any liability. This comment provides a brief educational overview of constructive discharge. Always consult an experienced employment law attorney in specific situations.

The following, according to numerous court decisions, is required to prove constructive discharge:

1. A reasonable person in the employee's situation would find the working conditions intolerable.
2. The employer intended to force the employee to quit, or the employer could reasonable foresee that its actions would cause the employee to quit.

While the above two items are the "formal" requirements of constructive discharge, there are frequently two other requirements embedded in a court's opinion.

1. The employee before quitting must give the employer a reasonable opportunity to resolve the situation.
2. There may be a requirement that aggravating factors (tangible economic loss, for example) establishing discriminatory intent be proven, particularly when the constructive discharge claim is part of a unlawful discrimination case.

Employer conduct such as job reassignment, demotion, salary reduction, badgering, humiliation, and harassment are all potentially related to a constructive discharge claim. However, it is difficult to prove constructive discharge because the conduct in question must go beyond the unpleasant, hurt feelings, and unprofessional actions. For example, an employer repeatedly requesting that an employee engage in illegal activities, by itself, according to many courts, does not rise to constructive discharge. Some courts have stated that establishing a constructive discharge claim requires more proof than that required to establish a hostile work environment for sexual harassment. Furthermore, the employment-at-will doctrine provides a broad umbrella for an employer to terminate an employee or for an employee to quit.

The "reasonable person" requirement is somewhat difficult to precisely quantify. It considers the total circumstances including how often the conduct in question occurred, how severe it was, to what extent it might be physically threatening, the emotional impact on the employee, and to what extent it interfered with the employee's ability to work. A jury, if there is a trial, has considerable discretion in assessing the situation.

In case after case denying a claim of constructive discharge, the court will note that the employee never complained or exercised an established procedure prior to resigning. Both the employer's intent and the employee's objective feelings are relevant. Not complaining makes it much more difficult to prove how the employee felt.

Furthermore, the time between the conduct complained of and the resignation must be sufficiently proximate to establish a link. Hence, an employee who tolerates the intolerable over a long period of time reduces her or his ability to prove that anything out of the ordinary occurred.

The above establishes a legal reason to complain if one is mistreated at work. From the employer's perspective, there should be established and published complaint procedures. If an employee fails to exercise these procedures, the employer has a defense.

This comment provides an incomplete general educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced employment law attorney in specific situations.