Client Bulletin #581
Monday’s Supreme Court decision in Green v. Brennan, holding that the time for an employee to bring a constructive discharge claim begins running from the date that resignation is tendered, will probably make timeliness calculations easier for both parties to employment litigation.
What’s a “constructive discharge”?
Under federal law, a “constructive discharge” occurs when the employer deliberately makes working conditions so intolerable that a reasonable employee would feel compelled to resign. If an employee quits under such circumstances, it has the same legal effect as if the employee were fired.
Constructive discharge claims often accompany claims of harassment or retaliation. In Green, the plaintiff alleged that he was discriminatorily denied a promotion and retaliated against.
Time for filing a charge
The deadlines for filing charges of discrimination under federal law vary, but the three most important ones are 45 days for federal employees (the deadline that applied to the plaintiff in Green, who worked for the U.S. Postal Service), 180 days for employees in states that do not have fair employment practices agencies, and 300 days for employees in states that do have fair employment practices agencies.
The question is when do these time periods start running?
The U.S. Postal Service argued that the time started running from the occurrence of the last discriminatory act, which everyone agreed was more than 45 days from the time that Mr. Green filed a charge. Other options would be the date that the employee tenders his resignation, or the effective date of the resignation. The U.S. Courts of Appeal for the Seventh, Tenth (which issued the lower court decision from which Mr. Green appealed), and District of Columbia Circuits had held that the limitations period begins to run after the employer’s last discriminatory act. On the other hand, the Second, Fourth, Eighth, and Ninth Circuits had held that the period does not begin to run until the employee actually resigns.
The Supreme Court, in a 7-1 decision by Justice Sonia Sotomayor, held that the charge-filing period begins to run when the employee tenders his resignation. According to the majority opinion, because “resignation” is an essential part of a constructive discharge claim, it didn’t make sense to start the clock running until that resignation had been accomplished. On the other hand, the employer did not have to wait until the resignation was effective – the tender of resignation was enough to start the clock.
(Justice Samuel Alito concurred, expressing his belief that the clock should begin running with the employer’s last discriminatory act but said that a “forced resignation” could be such an act, and, in his opinion, was in this case. Justice Clarence Thomas dissented, arguing that the time should run from the occurrence of the “matter alleged to be discriminatory.”)
Implications for Employers
At first glance, the Court’s ruling could be viewed by employers as unfavorable because it theoretically allows employees to extend the limitations period by continuing to work well after the alleged discriminatory conduct. According to Justices Alito and Thomas, it is also inconsistent with the language of Title VII. However, the decision may make things easier for employers.
First, the decision provides a clear-cut, bright-line rule for both parties to follow. Sometimes determining the “last discriminatory act” can be difficult and murky. The Court’s rule is easy to follow and may result in reduced litigation costs for both sides to an employment dispute.
Second, under Green, plaintiffs will still have a strong incentive to act promptly. As Justice Sotomayor noted, a constructive discharge claim “requires proof of a causal link between the allegedly intolerable conditions and the resignation.” The longer the employee waits to resign (after the employer’s last discriminatory act), the weaker that showing of “intolerability” becomes. Additionally, the employee may want to file a charge related to the underlying discrimination that gave rise to the resignation. The time clock on those claims is unchanged – the employee would have 45, 180, or 300 days from the discriminatory act in which to file a charge. If the employee delays too long while waiting to resign, the underlying claims might become time-barred.
Conclusion
Overall, Supreme Court’s decision in Green brings clarity and creates a simple limitations rule that will be easy for both parties to follow.
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