The Legal Fiction of Constructive Discharge as Decided by Federal Courts in Employment Discrimination Claims

Document Type


Publication Date

Spring 2011

Publication Title

ALSB Journal of Employment and Labor Law


The legal theory of constructive discharge was first adopted by the U.S. Supreme Court in Sure-Tan, Inc. v. National Labor Relations Board, 1 a case involving a wrongful termination claim under the National Labor Relations Act, and subsequently applied to several notable employment law decisions,2 culminating in the seminal case of Pennsylvania State Police v. Suders3 in 2004. In Suders and subsequent cases, the Supreme Court has held that harassment so intolerable as to cause a resignation may be caused by co-worker conduct, unofficial supervisory conduct, or official company acts. Although the U.S. Supreme Court has given broad guidelines to lower courts as to how to assess upon what specific circumstances a ―reasonable person‖ could find working conditions ―so intolerable‖ that he or she has the right to quit, the federal district courts and federal appellate courts have been primarily responsible for the application of this doctrine to employment discrimination claims, thus defining its parameters and the extent of its impact in wrongful termination cases. Unfortunately, this judicial action typically has occurred at the summary judgment phase of litigation, where the judge determines the sufficiency of the evidence from the ―paper case‖ presented by the litigants and decides alone whether the action will continue.

A review of the treatment of constructive discharge claims by the lower federal courts over the past decade suggests that the doctrine recognized by the Supreme Court in 1984 has become nothing but a legal fiction in wrongful termination claims except in the most egregious cases. Indeed, in the opinion of the authors, a careful review of recent case law could lead to the conclusion that unless an employer is homicidal or an employee is suicidal as a direct result of intolerable behaviors by the employer, a constructive discharge claim does not exist.4 These lower court decisions have left a significant legal loophole through which employers can exploit their obligations to act lawfully in honoring employment discrimination laws and fairly in engaging in employment termination actions. Because the constructive discharge claim seems to be rarely successful, the unlawful firings sought to be quelled by anti-discrimination laws can now be and have been achieved by employers who have made an employee‘s tenure so distasteful that he or she is, in effect, forced to quit without any legal recourse. This article will discuss the history of the development of the constructive discharge theory, the impact of the Suders case on this cause of action, the effect of a motion for summary judgment on constructive discharge claims, as well as what has happened to constructive discharge in the lower courts post-Suders, and finally propose some solutions to remedy the erosion of the constructive discharge doctrine.