Constructive Dischage

The Law Office of Rob Wiley, P.C., represents Texas employees who have been constructively discharged by their employer. Constructive discharge, also known as constructive dismissal, happens when an employer forces an employee to resign. In other words, even though the employee resigned, the separation was not voluntary.

What is the Law of Constructive Discharge in Texas?

In order for an employer to be held liable for a termination under most employment laws, the employer must "cause" the termination. A direct discharge is when an employer tells the employee that he or she is fired. By contrast, a constructive discharge occurs when, for all practical purposes, the employer caused the termination even though the employee may have technically resigned.

The most straightforward case of constructive discharge is where an employer confronts an employee with an ultimatum: resign or be fired. In this instance, there is no question that the employee was involuntarily terminated. Regardless of the employee's choice, the employee was going to be separated from work.

Constructive discharge, however, is not always this obvious. A common situation arises when a workplace becomes so hostile or intolerable that an employee cannot continue working. The legal test is that a "reasonable employee would have felt compelled to resign." There are a number of factors that a court may consider to decide whether a reasonable employee would feel compelled to resign. These include: (1) being demoted, (2) a reduction in salary, (3) a reduction in job responsibilities, (4) a reassignment to menial or degrading work, (5) a reassignment to work under a younger supervisor (for age discrimination claims), (6) harassment calculated to encourage resignation, or (7) offers of severance or early retirement. In interpreting these factors, a court will look to the degree to which an employee was affected. For instance, did the employee have a significant demotion, a large reduction in salary, or were they targeted by a serious level of harassment?

Constructive discharge is an important legal doctrine. It is the nature of discrimination that it is used as a tool to push people out of employment. A racist may racially harass someone with the intention that he or she will quit and leave. Constructive discharge is important because, although an employee who quits his or her position is usually prevented from filing a lawsuit, constructive discharge would allow the employee to argue that the true cause of the termination was their employer.

Unfortunately, Texas is a fairly hostile jurisdiction to constructive discharge claims. If you are considering resigning your job because of badgering, harassment, or humiliation, you should contact an employment lawyer prior to resigning your position.

Constructive Discharge in Unemployment Hearings


When making a claim for unemployment, the Texas Workforce Commission differentiates between an employee who quit and an employee who was fired. An employee who quit will not get unemployment benefits unless the employee can show good cause for quitting.

This is a very high standard, and unemployment benefits are usually denied to employees who quit. On the other hand, if an employee is fired, the employer has the burden of proving that the termination was for misconduct related to the work. Under this standard, it is more likely than not that an employee will receive unemployment benefits. For the purposes of unemployment, an employee who is constructively discharged should be considered as an employee who was terminated, not an employee who quit.

At various stages of the unemployment process, an employee will be asked, "Did you quit or were you fired?" In such a situation, the employee should be prepared to argue that the employer initiated the separation, that the termination was involuntary, and that the employee did not voluntarily quit.

If the employee fails to show that the employer initiated the termination, then the TWC will likely apply the standard for employees who quit their job, one that is hostile to receiving unemployment benefits.

Contact a Texas Constructive Discharge Lawyer

The Law Office of Rob Wiley, P.C., represents employees who are victims of constructive discharge. If you believe that you have experienced constructive discharge in your work place, or if you are considering resigning your position because of harassment, please contact us.