In California, constructive termination is when your employer intentionally creates or knowingly permits such intolerable working conditions that you reasonably feel no choice but to resign. You can then bring a wrongful termination claim against the employer as long as they had no right to fire you.1
Examples of what can lead to a constructive discharge include an employer:
- repeatedly yelling at, bullying, or verbally harassing you,
- making ongoing disparaging comments or intimidating remarks to you,
- reducing your job responsibilities or demoting you without cause,
- subjecting you to unreasonable performance evaluations,
- putting you at risk of workplace injury, or
- harassing you or discriminating against you due to a protected characteristic, such as your race, sex, age, or disability.
Here are three key things to know:
- Unpleasant workplace conditions alone are insufficient to prove constructive discharge.
- The statute of limitations to sue for wrongful termination is only two or three years depending on the case.
- Constructive termination is also called constructive discharge or constructive dismissal.
Below, our California employment law attorneys discuss the following topics in wrongful constructive termination law:
- 1. Can I sue for wrongful termination if I resigned?
- 2. What qualifies as “constructive termination”?
- 3. Can at-will employees sue for constructive termination?
- 4. What is the deadline to bring a claim?
Employment lawyers can help wrongful constructive termination victims to file a lawsuit.
1. Can I sue for wrongful termination if I resigned?
Yes. You can sue your employer for wrongful termination if you resigned as long as you can show you were “constructively discharged.”2
In order to bring a successful “constructive discharge” claim against your employer in California, you need to be able to show two things:
- Your employer intentionally or knowingly created or permitted working conditions for you that were so intolerable that a reasonable employer would realize that a reasonable person in your position would have no choice but to resign;3 and
- Your employer did not have the legal right to fire you outright.4
Note that in some situations – especially at larger companies – your employer may be genuinely unaware of your intolerable working conditions. Therefore you should notify your employer of what is going on before you attempt to sue. If you sue and the employer can show they had no knowledge of what you were going through, your constructive termination lawsuit will not succeed.
Money damages
Depending on your constructive termination lawsuit, you may be able to recover such remedies as:
- back pay and front pay, plus interest,
- missed bonuses and benefits,
- attorney’s fees and damages, and/or
- punitive damages.
2. What qualifies as “constructive termination”?
A constructive discharge claim can arise from an employer’s continuous patterns of harassment, discrimination, or clear hostility.5
Unpleasant working conditions are not enough to constitute a constructive discharge. Instead, the conditions must be so bad that a reasonable employee would feel compelled to resign.6
Also, you have to prove that the employer either
- intentionally created the intolerable conditions or
- actually knew about them and permitted them to continue.7
If the employer was unaware of the conditions, they are not liable. Where the employer is a company, this means that officers, directors, managing agents or supervisory employees need to have intended or known about the conditions.8
An employment attorney can often resolve wrongful constructive termination lawsuits through negotiation rather than a trial.
What if I stay at my job?
You cannot bring a plausible lawsuit alleging constructive discharge if you did not actually resign from your job at some point.
That said, many plaintiffs in wrongful constructive termination cases did, in fact, stay on the job for a material amount of time after the intolerable conditions began. California courts also recognize that it is often preferable for employees facing unfair behavior from their employers to
- try first to change their situation from within,
- rather than promptly resigning and suing.9
Thus, you will not automatically disqualify yourself from a successful wrongful constructive discharge suit if you remain in your job for some period of time after the intolerable conditions begin.
That said, the longer you remain in your job before quitting, the harder it may be to show that the employer’s actions were intolerable enough to amount to constructive termination.
3. Can at-will employees sue for constructive termination?
If you are an at-will employee – as most non-union workers are – your employer not only has the right to fire you: They also have the right to constructively fire you by creating working conditions so intolerable that would lead a reasonable person to resign.
However, you still may be able to sue your employer for constructive termination if it was wrongful.10 Under California law, constructive termination is wrongful when it either:
- violated an implied contract, or
- violated public policy, or
- was in retaliation to your whistleblowing, or
- was in retaliation to you exercising your rights under the Fair Employment and Housing Act (for example, by complaining about workplace harassment or employment discrimination).
In our experience, most cases of constructive termination fall under one of the above “wrongful” categories. Therefore, even at-will employees usually have legal grounds to file a wrongful constructive termination lawsuit.
4. What is the deadline to bring a claim?
The statute of limitations for wrongful constructive discharge cases varies depending on what kind of wrongful termination case it is:
| Wrongful Constructive Termination Case | California Statute of Limitations (generally) |
| Wrongful constructive termination in violation of an implied oral contract | Two (2) years to bring a lawsuit11 |
| Wrongful constructive termination in violation of public policy | Two (2) years to bring a lawsuit12 |
| Whistleblower wrongful constructive termination | Three (3) years to bring a lawsuit13 |
| Wrongful constructive termination in violation of Fair Employment and Housing Act | Three (3) years to file a complaint with the Civil Rights Department14 |
In a wrongful constructive termination case, the statute of limitations clock begins to run
- on the date when you resign in response to intolerable working conditions
- rather than on the date when the intolerable working conditions begin.15
Helpful links
- California Unemployment Benefits
- Equal Employment Opportunity Commission
- Title VII – Civil Rights Act
- U.S. Supreme Court
- United States Constitution
Legal References:
- Turner v. Anheuser-Busch, Inc. (California Supreme Court, 1994) 7 Cal.4th 1238, 1252. (“Thus, a constructive discharge may, in particular circumstances, amount to breach of an employer’s express or implied agreement not to terminate except in accordance with specified procedures or without good cause. . . . Apart from the terms of an express or implied employment contract, an employer has no right to terminate employment for a reason that contravenes fundamental public policy as expressed in a constitutional or statutory provision. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1094–1095, [hereafter Gantt ].) An actual or constructive discharge in violation of fundamental public policy gives rise to a tort action in favor of the terminated employee. (Foley, supra, 47 Cal.3d at pp. 665–671, Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178, [hereafter Tameny].)”; also see Green v. Brennan (2016) 542 U.S. 129.
- Same, at 1244. (“Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.”)
- Same, at 1251. (“In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.”)
- Same, at 1251. (“Standing alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing. Even after establishing constructive discharge, an employee must independently prove a breach of contract or tort in connection with employment termination in order to obtain damages for wrongful discharge.”)
- See endnote 3. See also, for example, Atalla v. Rite Aid Corp. (Cal.App. 2023) .
- See endnote 3, above; see our article on hostile work environments.
- Turner v. Anheuser-Busch, Inc., supra at 1251. (“For purposes of this standard, the requisite knowledge or intent [for constructive termination/constructive discharge] must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.”). Senate Bill 1044 (2022); California Labor Code 1139.
- Same.
- Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1058. (“The length of time the plaintiff remained on the job is relevant in determining the severity of the impact of the working conditions but does not as a matter of law prevent the plaintiff from proceeding with a claim for wrongful discharge. Some employees may stay on the job and endure very difficult circumstances that might have caused others similarly situated to quit sooner. Financial circumstances may not allow the employee the luxury of resigning before finding other employment. But the fact that for a time circumstances prevented the employee from resigning certainly does not decrease the burden the employer has placed on him.”)
- See endnote 4, above. Labor Code 2922 — Termination at will upon notice; employment for a specified term [general rule of at-will employment].
- Code of Civil Procedure 339 — Two years; oral contract; certificate, abstract or guaranty of title; title insurance policy; sheriff; coroner; rescission of oral contract. (“Within two years: 1. An action upon a contract, obligation or liability not founded upon an instrument of writing [such as an implied oral contract in a wrongful constructive termination case], except as provided in Section 2725 of the Commercial Code or subdivision 2 of Section 337 of this code; . . . .”)
- Code of Civil Procedure 335.1 — Two years; actions for assault, battery, or injury to, or for death of, individual caused by wrongful act or neglect [applies to wrongful termination or wrongful constructive termination]. (“Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”)
- Minor v. Fedex Office & Print Services, Inc. (N.D. Cal. 2016) 182 F.Supp.3d 966, 988. (“California’s statute of limitations for “[a]n action upon a liability created by statute, other than a penalty or forfeiture” is three years. See Cal. Civ. Proc. Code § 338(a). Therefore, actions commenced under § 1102.5 [whistleblower termination or constructive termination law] must be brought within three years.”)
- Government Code 12960 — Procedure for prevention and elimination of unlawful employment practices; application of article; complaints; limitations [wrongful termination based on wrongful constructive discharge for harassment/discrimination complaints]. (“(d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . .”); California Assembly Bill 9 (2019).
- Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731, 743. (“Because (1) constructive discharge is an employer-directed termination of employment, (2) termination normally is the breach alleged, and (3) the employee may elect to overlook earlier adverse actions of the employer in the hope of conciliation, we conclude that the statute of limitations does not begin to run until actual termination. An employee is not barred from bringing his or her claim on the basis of the statute of limitations as long as the claim is brought in a timely manner after the actual termination of employment.”)