Written by attorney Sean James Gavin

Constructive Discharge Vs. Constructive Quit

Constructive Discharge

The controlling case in California is Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238 (1994). In that case, Plaintiff complained of his treatment “after he informed his superior that other employees had violated state liquor laws, internal company policies and provisions of the collective bargaining agreement." Id. at 1266 (emphasis supplied). Plaintiff ultimately quit and subsequently sued for, inter alia, constructive discharge.

By way of definition, the Turner Court indicated:

“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." Id. at 1244-45 (citing Zilmer v. Carnation Co. (1989) 215 Cal.App.3d 29, 38-39).

The Court went on to articulate:

“Three areas of inquiry are suggested by the proffered test:

(1) what kinds of actions or conditions are sufficient to convert what is ostensibly a voluntary quit into a discharge;

(2) whether the impact of those actions and conditions is measured by a subjective (impact on this particular employee) test or an objective (impact on a hypothetical reasonable employee) test; and

(3) what level of employer knowledge or intent regarding those actions or conditions should be required to achieve a discharge." Id. at 1245,

To answer these questions, the Court found:

  1. As to what constitutes intolerable, “[t]he essence of the test is whether, under all the circumstances, the working conditions are so unusually adverse that a reasonable employee in plaintiff's position “would have felt compelled to resign." Id. at 1245 (citations omitted).

  2. As to the appropriate standard, “the cases are in agreement that the standard by which a constructive discharge is determined is an objective one." Id. at 1247 (emphasis supplied).

  3. As to the employer’s knowledge and intent, “the requisite knowledge or intent 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." Id. at 1251.

In summary, therefore, the relevant standard for constructive discharge dictates:

“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." Id.

In addressing whether an employer’s illegal conduct amounts to sufficiently intolerable or aggravated working conditions to permit constructive discharge, the Turner Court focused on four factors:

  1. Whether the employee was requested (or required) to participate in the illegal activity;

  2. Whether the supervisors duly acknowledged or investigated his complaints;

  3. The nature of the illegal conduct; and

  4. The passage of time between the allegedly illegal conduct and the resignation. Id. at 1254-55.

Constructive Quit

By contract, the doctrine of Constructive Quit is used when an employee makes some statement or engages in some behavior that is an unambiguous indication that she no longer desires employment.

In Steinberg v. California Unemployment Insurance Appeals Board 87 Cal.App.3d 582 (1978), the court held that all three of the following elements must be present to constitute a constructive quit:

  1. The claimant voluntarily committed an act,

  2. which made it impossible for the employer to continue to use the claimant's services, and

  3. the claimant knew or reasonably should have known that the act would possibly result in loss of employment.

Constructive Quit is a legal theory applied most commonly in the context of applications for Unemployment benefits. Typically, the employer will argue that the employee engaged in some course of behavior that unambiguously indicated she no longer wished to work for the employer. If the employer can prove this, it will be very likely to win any contest over Unemployment benefits eligibility.


The best way to ensure that you navigate these complex areas of law without sacrificing your legal rights is to contact a competent and knowledgeable employment law attorney.

Free Q&A with lawyers in your area

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer