What Is Constructive Discharge in Florida?

Have you ever quit a job because you just couldn’t tolerate it anymore? When do bad employment practices cross the line into something illegal? What is it called when you’re forced to quit your job because of your employer’s actions? The Tampa injury lawyers at Jack Bernstein, Injury Attorneys explain.

What Is Constructive Discharge?

Constructive discharge is when an employee is forced to quit a job because of the illegal actions of an employer. It occurs after an employee reports discrimination or dangerous activities. Instead of remedying the inappropriate behavior, the employer retaliates by demoting the employee or otherwise making life difficult for the worker. When the employee finally quits, they did not just quit; instead, it is constructive discharge.

What Qualifies as Constructive Discharge?

What qualifies as constructive discharge is action on the part of the employer that would cause a reasonable person to resign. In addition, the employee must actually resign. To qualify as constructive discharge, it must be more than just a boss who is rude or unfair.

Instead, it has to be based on unlawful discrimination, retaliation for reporting unsafe working conditions, or some other kind of unlawful activity. It qualifies as constructive discharge when the employer inappropriately retaliates in a way that makes a reasonable person quit the job.

Can I Get Unemployment for Constructive Discharge?

Yes, you can get unemployment for constructive discharge. The reason for giving you unemployment for constructive discharge is that you didn’t actually quit your job. Effectively, you were fired. It’s up to you to prove that you were the victim of constructive discharge, so it’s essential to have substantial proof of what happened that led to your quitting your job. However, if you can prove your case, yes, you can get unemployment for constructive discharge.

Constructive Discharge Florida

Constructive discharge in Florida is based on anti-discrimination laws. When constructive discharge occurs, the employee isn’t expressly fired. They’re not called into the office and told to clean out their desk. Instead, it’s the employee who decides to quit. However, the employee doesn’t actually quit. Instead, they’re forced out based on unreasonable working conditions. That’s constructive discharge in Florida.

Constructive discharge in Florida must be based on illegal or unlawful activity. It’s not enough just to have a boss that is mean or less than ideal working conditions. Instead, working must be unbearable for one of the following reasons:

  • Sexual harassment
  • Demotion or docking pay for illegal reasons
  • Mistreatment based on protected characteristics
  • Discrimination based on age, national origin, religion, race, disability, gender, sexual harassment
  • Retaliation against a whistleblower
  • Improper responses to unsafe working conditions

When the employer chooses to retaliate against their employee based on an unlawful reason, like sexual harassment, disability, gender, or whistleblowing, work can become unbearable for the employee. When the employee finally quits, it meets the standard for constructive discharge. The employer is then liable to the victim for damages for constructive discharge.

Constructive Discharge Legal Concept With Gavel

But Isn’t Florida an At-Will State?

Yes, Florida is an at-will state. Usually, that means an employer can fire an employee at any time. However, even though Florida is an at-will, right-to-work state, there are some notable exceptions. An employer may not fire an employee for an illegal reason.

Also, they may not harass a worker and make their life unbearably difficult because the worker reports an illegal or dangerous condition. Non-discrimination and constructive discharge laws supersede at-will employment laws.

Constructive Discharge Lawsuits in Florida

The first thing to know about constructive discharge lawsuits in Florida is that you need to work quickly. You have only a limited amount of time to report the case to the Equal Employment Opportunity Commission (EEOC) or the Florida Commission on Human Rights. For people who work for the federal government, you may have as few as 45 days from your resignation to file a complaint. For most employees, the time limit to file is 180 days or 300 days. From there, you can file the appropriate claims to demand compensation.

What Are Examples of Constructive Discharge?

An example of constructive discharge is the United States Supreme Court of Green v. Brennan.[1] The victim was an employee of the United States Post Office. The victim complained about being passed up for a promotion because of his race. Shortly thereafter, his employer accused him of a crime. He eventually resigned in exchange for the employer agreeing not to press criminal charges. Then, the employee brought suit for constructive discharge.

The court said that for constructive discharge to occur, the employer’s discriminatory conduct must be such that a reasonable employee would have felt compelled to resign. In addition, the employee must actually resign. In the Green v. Brennan case, the issue before the court was the question of the time limit to complain of the discrimination. The court ruled that the statute of limitations begins to run when the employee turns in their notice of resignation. It does not start when the resignation is effective. What employees can take from the Green v. Brennan case is that it’s crucial to begin a constructive discharge case right away. The time window to bring a claim for constructive discharge is shorter than it is in other types of personal injury cases.

How An Attorney Can Help With Constructive Discharge

An attorney can assist you if you feel that you were forced to quit your job. Working with a legal team, you can report your claim quickly and to the appropriate authorities. An attorney can prepare a statement that makes a case for employment discrimination. They know your options to claim recovery, and will thoroughly and methodically build your case for constructive discharge.


[1] Green v. Brennan, 136 S. Ct. 1769 (2016)

The information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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