New Jersey Constructive Discharge Attorneys

employment lawyers nj

Constructive Discharge: Were You Forced to Resign?

The leaders in employment law, Richard Schall and Patricia Barasch, represent New Jersey employees that have been constructively discharged by their employer. Constructive discharge, also known as constructive dismissal, occurs when an employer forces an employee to resign. In essence, an employer creates such a hostile work environment that the employee cannot reasonably remain as an employee.

A direct discharge is when an employer fires an employee. In contrast, a constructive discharge occurs when an employer allows a work environment to become so intolerable that although the employee resigned, the employer was effectively responsible for their employee’s resignation. Unbearable working conditions could include harassment, discrimination, receiving an adverse change in pay or job duties for reasons that are not work-related. 


Typically when an employee voluntarily leaves a job, they are not entitled to unemployment benefits. The employee forfeits the right to sue for wrongful termination by quitting. In the case of a constructive discharge, however, the employee might be eligible for both.

If an employee quits because they feel they faced unfair treatment at work does not mean they were necessarily constructively discharged. Quitting due to disciplinary proceedings, or quitting before a pending direct discharge does not constitute constructive discharge. In order to constitute constructive discharge, one or both of the following conditions must be met:

  • Hostile work environment
    • The employer or coworkers created intolerable working conditions that made it impossible for the employee to complete their work. 
    • In order to claim constructive discharge due to a hostile work environment, the work environment must meet the state and federal standards. This means that the hostile work environment resulted from discriminatory behavior. 
  • Coercion 
    • The employer threatened adverse employment actions that motivated the employee’s forced resignation. 


If you were constructively discharged, you may be able to file a wrongful termination, discrimination, or harassment lawsuit. This also allows you to file for unemployment benefits. Unemployment benefits are typically not available to employees who voluntarily resign. 

Merely having a mean, insensitive, cruel boss or a bully of a coworker does not mean your work environment is “hostile,” or your working conditions are “intolerable.” It will not be enough to merely show that your supervisor treated you poorly or that you were no longer happy in your position. Rather, you must prove that the working conditions you endured were objectively intolerable. To meet this standard, an average person in your situation would have similarly been compelled to resign. This, in general, is a high standard that is difficult to meet. 

The behavior, actions, and/or communications must be discriminatory on the basis of race, gender, religion, color, sexual orientation, pregnancy, age, disability, ancestry, or membership in another protected class.

If you felt you had no choice but to quit your job because of an intolerable work environment, you might be able to sue. However, keep in mind that the burden of proof lies with the employee in constructive discharge claims.


With your employment law attorney, you will need to prove that you suffered through unbearable work conditions. Next, you will provide documentation that you complained to your supervisor, HR, management, or other relevant authority, but the problem continued. 


Whistleblowers who face retaliation at work due to their whistleblowing activities who resign due to intolerable working conditions may also sue for constructive discharge. If you requested and were denied reasonable accommodations for your disability and subsequently found it impossible to complete your work, you may have grounds for constructive discharge.

Seek Counsel for Your Constructive Discharge Claim in New Jersey

It can be difficult to prove constructive discharge. Because of this, you should consider consulting with an experienced employment law attorney to determine whether or not you have a claim. 

It is also important to remember that there is a statute of limitations for filing a complaint. Depending on the nature of your claim, the statute of limitations may vary. Speak with your employment law attorney to determine the statute of limitations for your case. 

Before you quit your job due to intolerable work conditions, you should speak with your lawyer first. It is difficult, if not impossible to “undo” a resignation. Speak with an employment law attorney and have them assess whether a judge would consider your working conditions to be intolerable. They will also be able to assess whether or not you gave your employer sufficient time and opportunity to solve the issues. Before you leave, an employment lawyer can help you negotiate with your employer for either a severance agreement, or for improvements to your workplace.

What Our Clients Say

Much gratitude to Schall & Barasch for outstanding representation in my Equal Pay Act case - for their willingness and courage to pursue justice against the State and its limitless resources. Their legal skills are unmatched. Besides an expert knowledge of employment law, they have the fortitude and determination required for years of intense litigation. Richard and Patricia remain unwavering and always professional in the face of highly contentious litigation.

Theresa Hubal

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