SCOTUS Clarifies Constructive Discharge Timer Running on Employee Claims
Late last month the U.S. Supreme Court found that for employees alleging that they were “constructively discharged” from their employment (as opposed to terminated by their employer), the statute of limitations for a Title VII constructive discharge claim begins to run from the date the employee resigns, rather than from the date the alleged discrimination occurred, eventually causing the employee to resign.
Constructive discharge is a legal theory wherein an employee claims that the work environment is so toxic and discriminatory that he or she felt compelled to resign. Constructive discharge can happen in almost any workplace, and can be based under Title VII on an individual’s protected characteristic (such as race, sex, religion, etc.) or for his or her participation in a protected activity (such as whistleblowing.)
In the case of Green v. Brennan, the employee complained of race discrimination after he was passed over for a promotion at the U.S. Postal Service. After the Postal Service made the determination that there was no basis for his complaint, the employee’s supervisors allegedly confronted him with allegations of poor management and intentional delay of mail service (a federal crime, the complaint alleges), and reassigned him to off-duty status with no pay.
On December 16, 2009, the Postal Service and the employee agreed that, to avoid bringing potential criminal charges, the employee would either accept a demotion and move hundreds of miles from his current location, or retire. In February 2010, the employee opted to retire at the end of March.
On March 22, 2010, the employee contacted the Equal Employment Opportunity Commission (EEOC) and alleged he was unlawfully constructively discharged in retaliation for his original discrimination claim. The district court dismissed the claim stating that the federal employee had failed to seek out the EEOC within the required 45 days under the statute, or December 21, 2009, and was time-barred. The 10th Circuit affirmed the district court decision.
SCOTUS did not agree. In reversing the decision of the lower courts, the Court reasoned that because an employee cannot sue for constructive discharge until he or she actually quits, the notice of resignation itself is a part of the “complete and present cause of action” that starts the filing clock. The timer is not, in fact, tied to the actual last day worked. Thus, if an employee provides two weeks’ notice, the clock begins on the date of the notice
Even though this was a case involving a federal employee, all employers should sit up and take notice. This decision by SCOTUS makes it easier for employees to file discrimination claims for constructive discharge long after the alleged discriminatory conduct occurred by simply delaying resignation indefinitely. Employers can now face litigation from an employee who resigns months after a discrimination complaint is successfully resolved.
The takeaway from this case is very specific: if facing a complaint involving discrimination, harassment, or retaliation, be sure to involve HR (or even counsel) very early on, and monitor the situation to determine if the environment has improved and is no longer objectionable to the employee. You should make sure that the employee who has filed the complaint is informed, in writing, that he or she is obligated to immediately notify management of any continued discrimination or retaliatory conduct. This can be critical down the road for the employer to establish that the employee’s working environment was no longer objectionable at the time of resignation.
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