Whether it is a federal discrimination or termination case, many federal employees are curious about the concept of constructive discharge and if it may apply to their case. A constructive discharge occurs when an employer wrongfully makes working conditions so intolerable that the employee is either forced to resign or retire by involuntary means.
Common examples of constructive discharge in the federal sector include:
- A federal employee suffers continuous discrimination on the job to the point that he/she is suffering substantially at work and resigning is the best decision for his/her well-being.
- An agency fails to address ongoing sexual harassment at the workplace against a female employee, where the employee fears for their safety and resigns after their agency has yet to remedy the situation after it was initially reported.
- A federal employee is forced to apply for disability retirement when a federal agency refuses to take steps to reasonably accommodate his/her medical disability.
The most important element in a constructive discharge or removal case is whether the agency—through discrimination, harassment, retaliation, etc.—made the employee’s working conditions so atrocious that any reasonable individual in the same situation would have felt compelled to resign or retire. This type of complaint can be made to either the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), and in other courts.
The following is the essential test for a constructive removal/discharge:
- There has been discriminatory or retaliatory behavior against the federal employee
- The discriminatory behavior has been so severe that it appears to be intolerable by a reasonable person
- The person was forced to resign or retire due to these intolerable conditions
If all of the elements have been met, then it is possible to bring a constructive removal or discharge case against a federal agency. However, federal employees who are victims of such intolerable conditions must put the agency on notice of ongoing severe work conditions prior to a resignation or retirement. The agency should have a clear record of the efforts made by the federal employee to put management on notice of such conditions.