Constructive Termination-How Egregious Does It Have to be?
Very often I will get calls from prospective clients who feel they were "constructively terminated." As soon as I hear those two words I tense up. I don't think people realize how difficult it is to successfully prove constructive termination in New York. In the Second Circuit, an employee is constructively discharged when her employer intentionally creates a work atmosphere so intolerable that he or she is forced to resign involuntarily. Although specific intent is not a necessary element, if a plaintiff suing for constructive discharge cannot show specific intent, he or she must at least demonstrate that the employer's actions were deliberate and not merely negligent or ineffective. The test for constructive discharge is measured by a reasonable persons standard, meaning that whether the employer's deliberate actions rendered the employee's work conditions so intolerable as to compel resignation is assessed objectively by reference to a reasonable person in the employee's position.
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