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  • Writer's pictureDavid Manes

Constructive Discharge

You were recently diagnosed with severe panic disorder. For no reason, your body enters a hyper-vigilant fight-or-flight mode. You begin experiencing chest pains, shortness of breath, and you are convinced you are dying. Your vision turns blurry and you begin feeling extremely lightheaded and dizzy. Mistaking these symptoms for a heart attack, you call 911. At the hospital, your doctor explains that you will need a special medication to stop the panic attacks. Until you find the right medication that works for you, your doctor suggests you work from home to avoid driving a vehicle. You turn in a doctor’s note to your employer and explain the situation. Your employer seems to be on board, promising to support you in whatever way you need. You feel relieved, finally receiving some help in your mental health struggle. However, things take a turn for the worse. You notice your employer is not sending you as many assignments. As such, you have been working less hours. Your hours drop from a normal 30-40 hour work week, to barely working 20 hours in a month. You reach out to your employer and they promise to assign more work, but they never do. You feel trapped. You can not feasibly live off 20 hours a month…but you also really appreciate your employer letting you work from home. You feel like you have been terminated, even though you have not. What can you do?

First and foremost, mental disorders that substantially interfere with one or more major life activities (such as working) are protected under the Americans with Disabilities Act of 1990 ("ADA"). An employer may not retaliate against an employee for having and/or requesting an accommodation for his/her disability. Work from home may be an accommodation depending on the circumstances. If your employer is aware of the disability and the reason for requesting the feasible accommodation, then it would likely be considered an accommodation under the ADA. However, there is another option available for the employee in this circumstance: resigning from the position.

But resigning from a position prevents an individual from collecting unemployment compensation? Resignation bars an individual from bringing a wrongful termination claim? Fortunately, under Pennsylvania law, there is “constructive discharge” which may help an employee that quit their position maintain eligibility for unemployment benefits or a wrongful termination claim.

Constructive discharge occurs when an employee feels that their work situation is so intolerable that they have no choice but to resign. A worker who was constructively discharged-meaning a worker who was forced to resign due to intolerable conditions-retains the legal right to bring a wrongful termination claim. Since the resignation was not truly voluntary, it is, in effect, a termination. However, whether or not courts agree with an employee’s characterization of a constructive discharge can be a major factor in any wrongful termination case.

As a starting point, workers should know that nearly every U.S. state operates under an ‘at-will’ employment presumption — this includes Pennsylvania. At-will employment means that an employer can terminate a worker for nearly any reason or no reason at all.

However, there is a major exception to this rule: an employer cannot terminate a worker for an illegal reason, i.e., unlawful discrimination. Similarly, an employer cannot force an employee to resign or constructively discharge an employee for an illegal reason.

Often, constructive discharge claims involve allegations that an employer engaged in a pattern of sustained misconduct. However, in some cases, a single highly egregious act — such as asking an employee to engage in criminal activity — may be sufficient to sustain a constructive dismissal claim.

To bring a wrongful termination claim after a constructive discharge, an employee must be able to prove that there is a discriminatory or otherwise illegal motive underlying the employer’s conduct.

In the aforementioned example at the beginning of this article, if the employer continuously reduced the hours of only the employee with an accommodation, this may be discriminatory, assuming the employer can not offer a non-pretextual reason for doing so.

Recent case law has explained that merely difficult or unpleasant working conditions fall short of what is needed to state a viable claim. Courts have explained that working conditions need to be so intolerable that a reasonable employee has no option left but to resign. The employee should also exhaust administrative remedies with the employer before resigning.

In the aforementioned example at the beginning of this article, the employee should communicate with his/her employer and give the employer an opportunity to resolve the issue before resigning.

Notably, these are highly fact specific cases. Constructive discharge claims must always be assessed on a case-by-case basis. If you have any questions about constructive discharge or wrongful termination, speak with an RMN attorney today at or 412-626-5626.

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