Wrongful Termination Lawyers NY“I quit! Can I still file a claim for wrongful termination?” At the Law Offices of Delmas A. Costin, Jr., we are often asked this question by good employees who walked away from a bad situation. If you were forced out of your job due to severe or pervasive harassment, you may have a claim for “constructive discharge.” Our Bronx employment attorneys
provide a brief overview of this claim below. If you would like more information, please reach out to us by phone or email.

What is “Constructive Discharge”

“Constructive discharge” is a legal theory that says if you quit your job because of severe or pervasive harassment that creates a hostile work environment, then you did not voluntarily resign and you should be entitled to the same legal remedies as a person who was wrongfully fired. In other words, because your employer forced you to quit by maintaining a hostile environment, your employer should be liable for damages.

A Reasonable Person Would Have Quit

The hostile environment you complain of must be so intolerable that a reasonable person would have felt compelled to resign. The “reasonable person” concept is common in the law. It means that the evidence must show that you subjectively believed the workplace was hostile and that an objectively reasonable person in your position would agree.

Member of a Legally Protected Class

To maintain a successful claim for constructive discharge, the harassment complained of must be based on your membership in a protected class. The law protects you from discrimination and harassment based on religion, race, gender, nationality, age, disability and other characteristics. If your supervisor is harassing you because you are tall or because you are from Texas or because you are part of some other unprotected class, you will not be able to maintain a claim no matter how severe or pervasive the mistreatment is.

Harassment Must be “Severe” or “Pervasive”

What does severe or pervasive conduct look like? Conduct that is physical, badgering, demeaning, or humiliating can form the basis of a constructive discharge claim.  Language that is designed to demean a person based on his membership in a protected class is actionable too. Several instances of harassment may or may not be enough to rise to the level of “pervasive.” Isolated incidents of racial slurs or derogatory epithets generally will not form the basis of a winning hostile environment claim. On the other hand, a single incident involving a sexual assault generally will. The key is to demonstrate that a reasonable person would have resigned under the particular circumstances in your case.

If you are subjected to a tangible employment action – e.g., a humiliating demotion, a severe decrease in salary or responsibility, or a reassignment to menial or degrading work – as part of the harassing conduct, this will bolster your constructive discharge claim. These acts are easy to identify and document, and clearly affect the conditions of employment.

Building Your Case

In order to present a claim of harassment that is severe or pervasive enough to support a constructive discharge, you will need specific documented examples of the harassing conduct. You and your Bronx employment attorney will work together to compile evidence in support of your claim. This evidence might include:

  • A log of the date, time, and location of the incidents of harassment, and the names of witnesses (if any).
  • Witness statements.
  • Your own statements and descriptions of how the specific harassing conduct impacted your work. If you have a journal or diary where you recorded the impact of the harassment, this may provide valuable support for your claim.
  • Your employer’s investigation file and other documentation related to your complaints of harassment. (In most situations, you will be required to report harassment to a representative of the employer, such as a human resources manager or a supervisor. Document the date and the name of the person to whom you reported. If additional incidents occur, report those as well. Document your employer’s response to your reports of harassment.


Contact our Bronx Employment Attorneys

At the Law Offices of Delmas A. Costin, Jr., we know that every employment situation is unique, and we give your case the personal attention it deserves. If you think you have been constructively discharged, contact us today to learn more about your rights and your legal options.