High Court Defines When ‘Constructive Discharge’ Claim May Be Brought

By Allen Smith, J.D. May 24, 2016
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Sometimes, work circumstances become so awful that a member of a class protected by civil rights laws believes that he or she has no choice but to resign because of his or her protected status, whether that is race, sex, national origin, religion, age, disability or some other characteristic. In a May 23 decision, the Supreme Court defined when the plaintiff in these so-called constructive discharge cases must initiate contact with an Equal Employment Opportunity Commission (EEOC) counselor. 

Title VII of the Civil Rights Act of 1964 regulations state that an aggrieved federal civil employee “must initiate contact with a counselor within 45 days of [the] date of the matter alleged to be discriminatory.” The high court decided that this must be within 45 days of the employee’s notice of resignation rather than 45 days of the employer’s last discriminatory act. 

HR professionals consequently will want to have a “strong paper trail” showing when employees provide notice of leaving their jobs, said Brian Netter, an attorney with Mayer Brown in Washington, D.C. He noted that employees in the private sector have more time to file a charge with the EEOC—180 days—and 300 days to file a charge with a state agency. But the rationale of the Supreme Court’s decision would also apply to the private sector, he added.

The ruling provides clarity to employers on how long employees have to bring a constructive discharge claim. The decision also affords plaintiffs with some additional time to file charges with the EEOC than if the court had decided it must be within 45 days of the employer’s last discriminatory act, noted Douglas Haloftis, an attorney with Barnes & Thornburg in Dallas. So, the decision “benefits both sides.”

However, Ted Schroeder, an attorney with Litter in Pittsburgh, said the decision will lead to more claims.

Allegation of Delayed Mail

Marvin Green, a black employee for the U.S. Postal Service for 35 years, was the postmaster for Englewood, Colo., when he applied for a promotion to the vacant postmaster position in nearby Boulder in 2008. Shortly after he was passed over for the position, he complained that he was denied the job because of his race.

Green’s relations with his supervisors deteriorated following his complaint. On Dec. 11, 2009, two of his supervisors accused him of intentionally delaying the mail—a criminal offense—and told him the Postal Service’s Office of Inspector General (OIG) was investigating the charge.

Although the OIG concluded no further investigation was warranted, Green’s supervisors told him that the office was “all over this” and that a criminal charge “could be a life changer.”

On Dec. 16, 2009, Green and the Postal Service signed an agreement. The Postal Service promised not to pursue criminal charges in exchange for Green’s promise to leave his post in Englewood. The agreement also gave Green a choice: effective March 31, 2010, he could retire or report for duty in Wamsutter, Wyo.—population 451—at a salary much lower than what he earned in the Denver suburb.

Green chose to retire, submitting his resignation on Feb. 9.

EEOC Contacted

On March 22—41 days after submitting his resignation paperwork to the Postal Service, but 96 days after signing the settlement agreement—Green contacted an EEOC counselor to report an unlawful constructive discharge. He maintained that the choice he was given effectively forced his resignation in violation of Title VII.

The Postal Service argued that the charge was untimely. The district court agreed, as did the 10th U.S. Circuit Court of Appeals, which held that the limitations period begins to run for a constructive discharge claim after the employer’s last discriminatory act.

Supreme Court Reverses

In a decision written by Justice Sonia Sotomayor, the Supreme Court reversed, noting that a constructive discharge claim accrues only after an employee resigns. No text in Title VII or its regulations contradicts the standard rule that a limitations period commences when the plaintiff has a cause of action. The court noted that starting the limitations clock ticking before a plaintiff can actually sue for constructive discharge “serves little purpose in furthering the goals of a limitations period—and it actively negates Title VII’s remedial structure.”

The court sent the case back to the 10th Circuit for a determination of when notice was given—when Green signed the settlement agreement or when he submitted his retirement paperwork.

Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan joined Sotomayor’s decision.

Justice Samuel Alito Jr. concurred, saying he would rule that the limitations period starts upon the last discriminatory act of the employer. But, he added, an employee’s resignation could be considered a discriminatory employer act when an employer subjects an employee to intolerable working conditions with the discriminatory intent to force the employee to resign. 

In a dissent, Justice Clarence Thomas wrote that he would hold that only an employer’s actions may constitute a “matter alleged to be discriminatory.” Thomas wrote, “Because the only employer action alleged to be discriminatory here took place more than 45 days before petitioner Marvin Green contacted the EEOC, his claims are untimely.”

This decision is Green v. Brennan, No. 14-613.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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