You’re being passed over for promotions after complaining about discrimination. Your manager is making your job miserable. HR isn’t helping. You’ve had enough.

So you resign.

And you just made it nearly impossible to win your case.

The advice that’s costing you your claim

Someone told you that if conditions are bad enough, you can quit and sue for “constructive discharge.” That you don’t have to stay in a hostile environment. That resignation is actually termination if they made things intolerable.

Technically, that’s correct. Constructive discharge is a real legal concept.

But here’s what they didn’t tell you: The standard is so high that most people who resign thinking they have a constructive discharge claim don’t.

And once you quit, you’ve lost leverage, you’ve lost damages, and you’ve made your discrimination claim exponentially harder to prove.

What constructive discharge actually requires

Under New York law, constructive discharge means your employer deliberately created working conditions so intolerable that a reasonable person in your position would have felt compelled to resign.

Every word of that standard matters.

“Deliberately created.” You must prove your employer intended to force you out. Tolerating bad conditions isn’t enough. Failing to fix problems isn’t enough. The employer must have actively created or maintained the situation specifically to make you quit.

“So intolerable.” Not difficult. Not stressful. Not unfair. Not even discriminatory. Intolerable means conditions so severe that continuing to work is objectively impossible for a reasonable person.

“A reasonable person.” Courts don’t ask whether you personally couldn’t take it anymore. They ask whether any reasonable employee in your position would have resigned. Your subjective feelings don’t control. The objective standard does.

“Would have felt compelled.” This means no choice. Not that you preferred to leave. Not that you thought it was best for your mental health. Compelled means forced—that staying was not a reasonable option.

That’s a very high bar. And most workplace situations, even bad ones, even discriminatory ones, don’t meet it.

What doesn’t qualify as constructive discharge

Your manager is giving you impossible deadlines after you complained about discrimination. That’s retaliation. It’s not constructive discharge.

You were passed over for a promotion you deserved after taking FMLA leave. That’s discrimination. It’s not constructive discharge.

Your supervisor is documenting minor performance issues that were never problems before. That’s pretext. It’s not constructive discharge.

You’re being excluded from meetings, and your responsibilities are being reassigned. That’s adverse action. It’s not constructive discharge.

HR told you they investigated your harassment complaint and found no wrongdoing. That’s a failure to remedy. It’s not constructive discharge.

You were placed on a performance improvement plan after reporting discrimination. That’s retaliation. It’s not constructive discharge.

All of these are viable legal claims. But none of them justify quitting. And if you quit based on these circumstances, you probably don’t have a constructive discharge claim; you have a resignation that makes your other claims much harder to win.

Real constructive discharge is extreme

Cases that actually succeed on constructive discharge involve conditions like severe ongoing harassment that the employer knows about and refuses to stop, drastic involuntary demotions with massive pay cuts imposed as punishment, dangerous working conditions that create immediate physical risk, or being forced to engage in illegal activity as a condition of employment.

Even then, you typically need to have complained, given the employer a chance to fix it, documented everything, and shown that you exhausted all reasonable alternatives before quitting.

A recent Second Circuit case is instructive. An employee claimed constructive discharge after being required to participate in an alcohol counseling program. She stayed in her job for several years after the requirement was imposed, then resigned when she became eligible for pension benefits.

The court ruled that it wasn’t constructive discharge. If the conditions were truly intolerable, she would have resigned immediately. The fact that she stayed for years and resigned only when it was financially advantageous proved that the conditions weren’t objectively unbearable.

That’s the standard. If you can stay, courts will assume conditions weren’t intolerable.

Why quitting destroys your discrimination case

When you get fired, the employer has to justify the termination. They have to provide a legitimate business reason. You can then show that reason is a pretext for discrimination.

When you quit, you’ve done their work for them. You ended your own employment. Now you have to prove not just that they discriminated, but that the discrimination was so severe as to force you to resign. That’s a much harder case.

You also lose damages. If you’re fired, you can claim back pay from termination until you find new work. If you quit, you’re arguing you were constructively terminated, which means proving you had no choice but to leave. But if you had enough choice to decide when to resign, how intolerable were conditions really?

And you lose leverage. An employee still working and experiencing discrimination can document ongoing problems in real time. An employee who has already quit is arguing about conditions that no longer exist and can’t demonstrate continued harm.

Worst of all, your decision to resign becomes evidence against you. The employer will argue that if conditions were truly intolerable, you would have said so explicitly before quitting. That you would have exhausted internal remedies. That your decision to resign proves you had alternatives.

The resignation itself undermines your claim that you had no choice.

What to do instead of quitting

If you’re experiencing discrimination, retaliation, or harassment at work, don’t resign. Even if it’s terrible. Even if you want to leave. Even if someone told you that you can quit and sue.

Talk to an employment lawyer before you do anything. Explain what’s happening. Get advice on how to document it, whether to make additional complaints, and what your legal options are while you’re still employed.

Keep working if you can. Continue to document problems. Follow your employer’s policies for internal complaints. Create a contemporaneous record of what’s happening and when.

Make them fire you if that’s where this is heading. Being terminated gives you a much stronger case than resigning. If they won’t fire you, that’s actually helpful too; it shows conditions weren’t intolerable enough to force you out.

And understand that most discrimination and retaliation doesn’t require you to stay in an intolerable situation forever. It requires you to stay long enough to preserve your legal claims, document what’s happening, and let your lawyer build a case.

Once you have a strong retaliation or discrimination claim documented, your lawyer can negotiate from a position of strength. You might get a severance. You might get reassignment. You might get the problem corrected. Or you might pursue litigation with a solid foundation.

But if you quit first, you’ve given up almost all of that leverage.

When you actually should consider resigning

There are legitimate reasons to resign, even knowing it hurts your legal case.

If staying poses an immediate threat to your physical safety, leave. If your employer is requiring you to engage in illegal conduct and won’t stop, leave. If you have a documented psychiatric condition and your doctor is advising that continued employment poses a serious medical risk, consider it.

But even in those situations, talk to a lawyer first if at all possible. Get advice on how to resign in a way that preserves whatever claims you have. Understand what you’re giving up. And make sure you’re actually facing one of these extreme situations, not just a very difficult workplace.

Most of the time, the right answer is: don’t quit, no matter how much you want to.

The timeline problem

Clients often come to us after they’ve already resigned. They explain the discrimination they experienced. They describe the retaliation. They outline the harassment. All of it sounds like strong claims.

Then we ask: “Did you complain to HR?”

“Yes, but they didn’t do anything.”

“What happened after that?”

“Things got worse, so I quit.”

“When did you quit?”

“Two weeks after I complained.”

And that’s where the constructive discharge claim usually dies.

Two weeks isn’t enough time to show that you gave the employer a chance to remedy the situation. Two weeks isn’t enough to show that conditions were persistently intolerable. Two weeks suggests you decided to resign, not that unbearable circumstances forced you out.

Courts expect you to endure the situation long enough to demonstrate it’s genuinely intolerable. That’s not fair, but it’s the law. The burden is on you to prove you had no choice, and a quick resignation suggests you did have choices, you just didn’t like them.

We see this constantly

At Risman & Risman, we regularly talk to potential clients who resigned, only to find they had no strong constructive discharge claim. They were experiencing real discrimination. Real retaliation. Real harassment.

But they quit before talking to a lawyer. And now their cases are dramatically weaker than they needed to be.

We still evaluate these cases. Sometimes, we can build a constructive discharge argument. Sometimes the circumstances were extreme enough to justify resignation. Sometimes we can pursue claims that don’t depend on constructive discharge.

But we always wish they had called us before resigning. Because in almost every case, staying employed would have given them better options.

Get advice before you resign

If you’re experiencing discrimination, retaliation, or harassment and you’re considering resigning, talk to an employment lawyer first. Not after. Before.

We can evaluate whether your situation genuinely rises to the level of constructive discharge. We can advise you on what to document, what internal remedies to exhaust, and whether resignation makes sense in your specific circumstances.

We can help you understand the legal standard you’d have to meet and whether you’re likely to meet it. We can explain what claims you’d be giving up and what leverage you’d lose.

And we can help you make an informed decision instead of an emotional one.

At Risman & Risman, we represent New York employees in discrimination, retaliation, and harassment cases. We know the constructive discharge standard. We know when resignation is justified and when it destroys an otherwise strong case.

If you’re thinking about quitting your job because of how you’re being treated, call us at 212-233-6400 or contact us online for a free confidential consultation before you do.

The advice we give you before you resign could be worth more than any case we could file after you’re gone.

Don’t quit. Not yet. Not until you talk to a lawyer who can tell you what you’re really giving up.