Not long ago, I wrote a rather lofty theoretical analysis about the notion of “constructive discharge,” or the legally frowned-upon practice of forcing employees to quit instead of firing them. I never expected a real-life threat of constructive discharge to erupt on the national stage. But, voilà! The very public feud between President Donald Trump and Attorney General Jeff Sessions offers lessons for employers on the pitfalls of pushing out employees. 
Tweeting and twisting in the wind
Of course, Sessions isn’t an at-will employee in the traditional sense and doesn’t necessarily share the same rights as everyday employees. When viewed as an employer, President Trump recently “hired” Sessions, or rather promoted him from the role of U.S. Senator from Alabama to the head of the U.S. Department of Justice (DOJ). The president later had buyer’s remorse, citing concerns that his new hire was underperforming. Trump apparently believes he was crystal-clear that the attorney general was required to do a number of things, including investigating former Secretary of State Hillary Clinton and stopping DOJ leaks of information. In particular, Trump has been upset that Sessions recused himself in March from the ongoing Russia-related investigations.
In response to Sessions’ alleged underperformance, Trump publicly announced his displeasure. He tweeted that Sessions’ performance was “VERY weak.” When asked during a press conference whether he’d fire Sessions, Trump’s answer was: “We’ll see what happens.”
Constructive discharge guidance for employers
Whether you view it as politicking or supervising, President Trump’s commentary and tactics should be approached cautiously by employers. It generally is not sound practice to force out employees. If an employer deliberately makes working conditions so intolerable that the employee has no choice but to resign, the employee can ask a court to transform his resignation into a termination and award back wages, emotional distress damages, and other monetary penalties.
Simply put, the law doesn’t allow employers to avoid illegal termination by bullying employees into resignation. Employees, however, may not just “quit and sue.” Courts expect them to stay and fight alleged discrimination and retaliation. They are expected to avoid assuming the worst and instead give the employer a reasonable opportunity to correct the issue unless such efforts are proven futile.
Would Sessions have a case if he were ‘employee’?
Is President Trump trying to force Sessions out to avoid firing him? Only the president knows for sure, but the evidence so far shows that Sessions might be able to lodge a constructive discharge claim if he were a traditional employee.
Assuming President Trump is an employer, he is absolutely entitled to give performance feedback—even if it’s negative, rude, or harsh. After all, employment laws aren’t intended to be general civility codes of conduct. Employers may alert an employee that their expectations aren’t being met and that termination is potentially imminent if no remedy is found. From President Trump’s perspective, this issue is simple: Sessions was a new hire with clearly defined and unmet performance goals.
On the other hand, Sessions the Employee is entitled to perform his job free of illegal retaliation. He could claim he was ethically and legally required to recuse himself and that Trump’s so-called performance concerns were a pretext and simply a method to punish him. He could further argue that the very public critique of his performance was calculated to embarrass and undermine his credibility. If he does quit, he could argue (again as an employee) that he was deliberately forced out through illegal retaliation and had no other choice—that staying and enduring the onslaught would have been futile.
If Sessions leaves on his own, Trump will likely point out that he never fired him and that his language was careful. The president said only, “We’ll see.” Sessions then might point out that the president used the same words before his “coworker” former FBI Director James Comey was fired, and thus the statement was a clear warning.
Amongst this mess, the rest of the workforce suffers. Productivity at the DOJ is slowed, morale is shot, and management (President Trump) has a real PR challenge if he’s looking for a person to succeed Sessions as attorney general.
Bottom line for employers
The fallout from this kind of situation can be real, and isn’t limited to the drama in Washington, D.C. In our workplaces, employers must control disputes between supervisors and employees, encourage dispute resolution if performance concerns are fueled by personality disputes, coach supervisors to refrain from 
holding grudges about prior disappointments, and recognize the impact of forcing out employees.
Constructive discharge carries the very real threat of generating legal liability and monetary damages, and this toxicity will erode your employees’ productivity and morale as collateral damage.
Michele L. (Warnock) Brott is an attorney with Davis Brown Law Firm in Des Moines, Iowa. She may be contacted at michelebrott@davisbrownlaw.com.