Constructive discharge occurs when an employer deliberately makes an employee’s work environment so intolerable that resignation is the employee’s only plausible alternative. A recent federal court of appeals decision demonstrates, however, that constructive discharge is usually difficult for an employee to prove.

In Cosby v. Steak N Shake, the employer gave the plaintiff two performance warnings and a supervisor told the plaintiff that “this” would continue if the plaintiff did not resign. No. 15-1052 (8th Cir. Nov. 4, 2015). When the plaintiff asked about his future at the company, the supervisor laughed. A few minutes later, the plaintiff announced his resignation, and the supervisor said, “this is perfect!” The supervisor also said that he considered the resignation a “huge plus.” The plaintiff later sued and alleged that he was constructively discharged due to race and disability discrimination and retaliation.

In analyzing the plaintiff’s claims, the Cosby court explained that to prove constructive discharge, an employee must show that:

  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 reasonably foresee that its actions would cause the employee to quit; and
  3. The employee must not quit without giving the employer a reasonable chance to resolve his claim.

The court further explained that constructive discharge requires “considerably more proof than an unpleasant and unprofessional environment.”

The Cosby court held that the plaintiff failed to meet the high standard necessary for a constructive discharge claim. The court reasoned that the supervisor’s laughter and threat that performance warnings would continue until the employee resigned were merely unpleasant, but did not create an “intolerable” working environment. The court also held that the plaintiff could not rely on the supervisor’s comments following his resignation as an alleged justification for the resignation. Finally, the court held that the plaintiff failed to give the employer a reasonable opportunity to address his grievances before his resignation and, therefore, was barred from pursuing a constructive discharge claim.

Takeaway: There is a high evidentiary burden for plaintiffs to establish a claim for constructive discharge. To succeed on a constructive discharge claim, a plaintiff must establish that his or her working conditions were objectively intolerable, that the plaintiff’s resignation was intended or reasonably foreseeable, and that the plaintiff gave the employer an opportunity to correct the alleged problems before he or she resigned.