Illegal Retaliation Doesn’t Meet Threshold for Constructive Discharge

By Jon Hyman

Jun. 13, 2016

Henry v. Abbott Laboratories (6/10/16) [pdf] is what I would call a curious case, and one that I plan to liberally use any time I’m defending a case in which claims both of discrimination/retaliation and constructive discharge are asserted.

A constructive discharge is when an employer makes ones working conditions so intolerable that a reasonable person under such circumstances would have felt compelled to resign. It is not an independently unlawful act, and must be tied to some underlying illegal conduct (i.e., unlawful discrimination, harassment, or retaliation) to support a claim. Thus, if the misconduct is alleged to have violated Title VII, and if the employee resigns in the face of such circumstances, Title VII treats that resignation as tantamount to an actual discharge.

It seems pretty cut and dry, then, if an employee resigns because she feels that she was retaliated against for engaging in some protected conduct, the resignation should rise to the level of a constructive discharge, if the underlying retaliation is also unlawful.

Not so cut and dry, however, to the 6th circuit court of appeals, which, in Henry v. Abbott Laboratories, concluded that the alleged retaliation alone does not suffice to support a constructive discharge claim, and that the underlying retaliatory adverse actions must independently rise to the level of severity such that a reasonable person would have felt compelled to resign.
If unlawful retaliation isn’t sufficiently intolerable such that it would support a constructive discharge claim, then what is? Or, looking at it another way, the 6th Circuit Court seems to be saying that one cannot look to the alleged statutory violation to support a constructive discharge claim, but instead to the conduct that underlies the alleged violation—in this case, a low performance evaluation, increased scrutiny, a letter of expectations threatening further action if performance did not improve, and being kept on the training line. Yet, if those adverse actions support a retaliation claim, as the court held a jury should conclude, shouldn’t a jury also have the opportunity to decide whether a resignation in the face of such alleged retaliatory adverse actions supports a constructive discharge claim?
While this case certainly favors employers, it is nevertheless one that I think should have gone the other way on this issue.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at

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