The constructive discharge rule states that if intolerable working conditions associated with the employer's discrimination force the employee to resign, then the employee will be considered to have been "constructively" discharged on the date of resignation. The employee will be treated as if he or she had been fired by the employer and therefore is eligible for remedies traditionally associated with wrongful termination, such as reinstatement and backpay past the date of "discharge." If the employee has not been constructively discharged, then under the general rule the employee will only be entitled to preresignation backpay. In examples similar to this one, the courts have taken the position that a discriminatory failure to promote, without more, does not amount to a constructive discharge and thus does not warrant postresignation backpay. However, a few recent denial of promotion cases have begun to ease the restrictions on postresignation relief engendered by the constructive discharge rule. While application of the traditional constructive discharge rule can lead to unfair results under Title VII, recent cases have begun to recognize that where opportunities for promotion and advancement have been frustrated to an intolerable degree, the constructive discharge rule should not preclude postresignation relief. Instead, reasonable expectations analysis advances the statutory purposes of Title VII more readily than does the traditional constructive discharge rule and thus is the more appropriate standard.
Richard M. DeAgazio,
Promoting Fairness: A Proposal For a More Reasonable Standard of Constructive Discharge in Title VII Denial of Promotion Cases ,
19 Fordham Urb. L.J. 979
Available at: http://ir.lawnet.fordham.edu/ulj/vol19/iss4/4