Getting Unemployment After Quitting Due To Discrimination

If you were forced to quit your job because of discrimination, you may be eligible for unemployment benefits.

To be eligible for unemployment benefits, an applicant must be out of work through no fault of his or her own. (This is only one of several eligibility requirements; to learn about the others, see Who Is Eligible for Unemployment?) If you quit your job without good cause (as defined by your state), you won’t be eligible for benefits. However, if you are forced to quit because of hostile working conditions, you may still qualify for benefits. Under the legal concept of “constructive discharge,” an employee who is forced to quit is treated as if he or she was fired — and will be eligible to collect unemployment.

A constructive discharge occurs when an employee quits a job because the working conditions are so intolerable that any reasonable person in the same situation would have felt forced to quit. For example, an employee who quits after being required to work in dangerous conditions or subjected to constant harassment might have a constructive discharge claim.

Typically, it isn’t enough for an employee to show intolerable working conditions: The employee must also take steps to try to remedy the situation, often by reporting it or filing a complaint with the employer. For example, an employee who quits after one incident of workplace harassment probably won’t have a constructive discharge claim. If, however, the employee reported the incident to the HR department, the employer did nothing, and the harassment grew worse, the employee will have a constructive discharge claim if the harassment becomes intolerable.

An employee who is forced to quit due to discrimination may have a claim of constructive discharge. In this situation, the employee would have to show that discrimination made the work environment so intolerable that the employee was essentially forced out because of his or her race, religion, gender, or other protected characteristic. As explained above, the employee will likely have to show that he or she took steps to try to improve the situation before quitting, such as reporting discriminatory conduct internally and participating in the company’s investigation. If the employee’s efforts don’t work and the discrimination becomes intolerable, however, the employee may have a constructive discharge claim.

When you file for unemployment benefits, you will have to complete a claim form providing some basic information about yourself and your employment history, and explaining why you are out of work. Often, employees who quit their jobs have to participate in a hearing, so the state unemployment agency can figure out whether they are entitled to benefits. In this hearing, you will have to explain why you felt forced to quit. You should also be prepared to provide evidence that your working conditions were intolerable. In a discrimination case, this might include:

• Statements by managers and company decision makers. For example, if your manager told you that women in your department would not get raises because “men are the ones who have to support their families,” or the head of your work group stated that no Latinos would be promoted to customer service positions, that would provide evidence of a discriminatory intent. If your manager admits trying to force you out, that would be strong evidence in your favor. For instance, a manager who says “I don’t have grounds to fire you, but I’m going to make you miserable as long as you’re working here” would lay a solid groundwork for a constructive discharge claim.
• Statistical information. For example, your company said that it was imposing pay cuts due to poor economic conditions, but only employees who are at least 60 years old had their wages reduced.
• Documentation of your complaint. You should provide a copy of your internal complaint of discrimination and information on how the company handled it.
• Your discrimination charge. If you have filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or your state’s fair employment practices agency, you should provide that as well. Filing a charge with the appropriate agency is a prerequisite for filing a discrimination lawsuit, so you’ll have to take this step if you plan to sue.

If the unemployment hearing officer finds that you were forced to quit, you will be eligible for benefits. However, your former employer can appeal this decision. And you can appeal if the hearing officer decides against you.

It can be very tough to prove that you were constructively discharged due to discrimination. You should expect that the employer will contest your claim for unemployment benefits rather than allowing your allegations of discrimination to stand unanswered. This is a good time to talk to an experienced employment lawyer to find out your options. An attorney can help you figure out whether you have a strong claim and how to make your case to the unemployment hearing officer. An attorney can also use the unemployment hearing to gather information about the employer’s defenses, evidence, and witnesses, which will prove helpful if you decide to file a discrimination lawsuit.