Constructive Discharge in New York: When Quitting Counts as Being Fired

Constructive discharge is the legal term for a resignation that is treated as a firing. Under federal law, it applies when working conditions became so intolerable that a reasonable person in the employee's position would have felt compelled to resign.⁠^[1] The New York Court of Appeals has stated a similar test, adding that the employer's actions in creating the intolerable conditions must be deliberate and intentional.⁠^[3]

The doctrine answers one question only, whether a resignation counts as a discharge. A worker in New York does not need to resign to have a harassment claim under federal, State or City law, and resigning does not by itself create one.⁠^[8][4][5] This page sets out the federal and New York statements of the test, how a resignation affects an employer's defenses, when the deadline starts, and how the separate "good cause" test for unemployment benefits fits in.

What is constructive discharge?

The U.S. Supreme Court described the doctrine in Pennsylvania State Police v. Suders (2004), a case under Title VII, the main federal employment discrimination statute. Under the doctrine, an employee's reasonable decision to resign because of unendurable working conditions is "assimilated to a formal discharge for remedial purposes."⁠^[1]

What is the federal test?

The federal inquiry is objective: the measure is a reasonable person in the employee's position.⁠^[1]

In a harassment case there is a second layer. Under Title VII, harassment is actionable only if it is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.⁠^[9] To establish constructive discharge on top of that, the Supreme Court said, the plaintiff must make a further showing: that the abusive working environment became so intolerable that her resignation qualified as a fitting response.⁠^[2]

The Second Circuit, the federal appeals court that covers New York, describes constructive discharge as occurring when the employer, rather than discharging the employee directly, intentionally creates a work atmosphere so intolerable that the employee is forced to quit involuntarily.⁠^[10]

How do New York's courts state the test?

The New York Court of Appeals, the State's highest court, stated the test in Morris v. Schroder Capital Management International (2006). Morris was not a discrimination case: the Second Circuit had asked whether "involuntary termination" under New York's common-law employee choice doctrine is governed by the constructive discharge test from federal employment discrimination law, and the Court of Appeals answered yes.⁠^[11] Constructive discharge occurs, the court said, when the employer, rather than acting directly, deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation.⁠^[3] The trier of fact must be satisfied that the working conditions were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.⁠^[3] The court added that the employer's actions in creating the intolerable workplace condition must be deliberate and intentional.⁠^[3]

What this page does not cover. How courts apply that test to a claim under the New York State Human Rights Law as amended in 2019; whether the New York City Human Rights Law (NYCHRL) has a separate constructive discharge test; whether the Supreme Court's rule on when the deadline starts, described below, applies to a private-sector EEOC charge; and how State or City courts fix the starting date for a constructive discharge claim. Those are questions for a lawyer.⁠^[12][13][6]

The amended State statute directs that it be construed liberally regardless of how comparably worded federal laws have been construed, so neither the federal nor the Morris formulation can simply be assumed to be the State Human Rights Law rule for current claims.⁠^[12]

Is there a separate New York City test?

The NYCHRL says that it must be construed liberally to accomplish its uniquely broad and remedial purposes, whether or not comparably worded federal or New York State laws have been read that way.⁠^[13] A federal or State formulation therefore cannot simply be assumed to be the City rule. The guide to the City Human Rights Law explains that rule of construction.

Do I have to quit to have a claim?

No, under any of the three layers. Constructive discharge is about whether a resignation counts as a termination. It is not a condition of bringing a harassment or retaliation claim.

• Federal law. Sexual harassment that creates a hostile or abusive work environment violates Title VII even when the employee suffers no economic or tangible loss.⁠^[8]
• New York State law. Under the New York State Human Rights Law (NYSHRL), harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of a protected characteristic, and it is unlawful regardless of whether it would be considered severe or pervasive.⁠^[4]
• New York City law. Under the NYCHRL, differential treatment can be actionable even if the employee was not fired or demoted.⁠^[5]

Retaliation law works the same way. Under federal Title VII, the question is whether a reasonable employee would have found the employer's action materially adverse, meaning it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.⁠^[14] Under the City law, the retaliation need not result in an ultimate action with respect to employment.⁠^[15]

For the broader standards, see what a hostile work environment is and what counts as retaliation.

How does a resignation affect the employer's defenses?

Under federal law the answer depends on what prompted the resignation. When a supervisor's harassment did not result in a tangible employment action, a federal employer can avoid liability or reduce damages by proving both that it exercised reasonable care to prevent and promptly correct harassing behavior and that the employee unreasonably failed to take advantage of the preventive or corrective opportunities it provided.⁠^[16] This is known as the Faragher-Ellerth defense.

Suders decided how that defense applies to a constructive discharge. The employer may still raise the defense, unless the employee quit in reasonable response to an employer-sanctioned adverse action that officially changed her employment status or situation.⁠^[17] The Supreme Court's examples were a humiliating demotion, an extreme cut in pay, and a transfer to a position with unbearable working conditions.⁠^[17]

State and City law have their own rules on internal complaints. Under the New York State Human Rights Law, the fact that the individual did not complain about the harassment to the employer is not determinative of whether the employer is liable.⁠^[4] Under the New York City Human Rights Law, the New York Court of Appeals held in 2010 that the Faragher-Ellerth defense does not apply to sexual harassment and retaliation claims.⁠^[18] The guides on reporting to HR first and employer liability for supervisors and coworkers go into detail.

When does the deadline start after a resignation?

In Green v. Brennan (2016), the U.S. Supreme Court held that, because the resignation is part of the matter alleged to be discriminatory in a constructive discharge claim, the limitations period begins running only after the employee resigns.⁠^[6] The Court specified the moment: the claim accrues, and the period begins to run, when the employee gives notice of the resignation, not on the resignation's effective date.⁠^[7] The case concerned the 45-day period in which a federal employee has to contact an agency counselor.⁠^[6]

The length of the period depends on the layer:

• Federal. A Title VII charge has to be filed with the EEOC within 180 days, or within 300 days where the person has first instituted proceedings with a state or local agency that has authority to grant or seek relief; the EEOC's New York office states the period in New York as 300 days from the alleged harm.⁠^[19][20]
• New York State. A court action under the State Human Rights Law has to be commenced within three years, and a complaint to the Division of Human Rights has to be filed within three years after the alleged practice.⁠^[21][22]
• New York City. A lawsuit under the City Human Rights Law has to be commenced within three years, and a complaint to the NYC Commission on Human Rights within one year, or three years for a claim of gender-based harassment.⁠^[23][24][25]

Earlier events have their own clocks: under federal law, each discrete act such as a demotion or a denial of transfer starts a new filing period, and a discrete act outside the period is time-barred even if it is related to timely acts.⁠^[26] See every deadline in one table and the continuing violation rule.

How is this different from "good cause" for unemployment benefits?

They are separate tests; unemployment insurance is a State benefit program with its own statute.⁠^[27]

Under New York State law, a claimant who voluntarily separates without good cause is disqualified from unemployment benefits until the claimant has worked again and earned at least ten times the weekly benefit rate.⁠^[27] The statute says that quitting does not in itself disqualify a claimant where circumstances developed in the job that would have justified refusing it in the first place.⁠^[27] It does not list sexual harassment by name.⁠^[28]

The State Department of Labor's published interpretation index records Appeal Board rulings that being harassed by coworkers to the extent that health is adversely affected may be good cause to quit, and that discriminatory enforcement of a company rule is good cause.⁠^[29] The guide to unemployment benefits after quitting or being fired covers the benefit rules.

What does a constructive discharge change about remedies?

Because a constructive discharge is assimilated to a formal discharge for remedial purposes, it bears on the remedies tied to losing the job.⁠^[1] Under federal Title VII, a court that finds intentional discrimination may order reinstatement with or without back pay, and back pay is reduced by what the person earned in the meantime or could have earned with reasonable diligence.⁠^[30] See back pay, front pay and reinstatement and damages in New York employment cases.

What should a person think about before resigning?

The decision to leave a job is personal, and health and safety can outweigh every legal consideration. These points are practical rather than legal:

• Write down what happened, with dates, places and the names of people who were present, while memory is fresh.
• If you resign, a short written resignation that states the reason creates a record made at the time.
• Note the date of the last incident and the date of the resignation; both can matter for timing.

Two legal points bear on the timing. Under New York State's model sexual harassment prevention policy, an employee does not have to use a written complaint form; a verbal complaint or an email is treated with equal priority.⁠^[31] And the same model policy warns that complaining internally does not extend the time to file with the Division of Human Rights or in court.⁠^[32] The guide quit or stay? compares the legal consequences of each choice.

What do people commonly get wrong?

• "I quit, so I have no case." A resignation can be a constructive discharge when conditions were objectively intolerable, and harassment claims under federal, State and City law do not depend on a discharge at all.⁠^[1][8][4][5]
• "Any hostile work environment is a constructive discharge." Under federal law a constructive discharge takes a further showing beyond a hostile environment.⁠^[2]
• "It is enough that I found the job unbearable." The federal inquiry is objective, and the New York Court of Appeals asks what a reasonable person in the employee's shoes would have felt compelled to do.⁠^[1][3]
• "If I qualify for unemployment, I was constructively discharged." Unemployment eligibility after quitting turns on "good cause" under the State Labor Law, which is stated in different words from the constructive discharge test.⁠^[27][3]