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The U.S. Supreme Court heard oral arguments Nov. 30, 2015, in a case asking whether the filing period for a constructive discharge claim under Title VII of the 1964 Civil Rights Act begins to run when the employee resigns or when the employer commits the last allegedly discriminatory act leading to the resignation (Green v. Brennan, No. 14-613).
An employee may assert a constructive discharge claim when the employer made working conditions so intolerable that a reasonable person would feel compelled to resign. Former postmaster Marvin Green claimed he was forced to resign after he was subjected to harassment in retaliation for filing race discrimination complaints.
The 10th U.S. Circuit Court of Appeals ruled that Green waited too long to file his claim under a 45-day limitations period applicable to federal-sector claims under Title VII. The claim accrued when the U.S. Postal Service gave him a choice between retiring or taking a lower-paying job 300 miles away, not on the date that he formally resigned a few months later, the appeals court said.
The outcome of this case could force employers to disprove allegations of wrongful conduct long after their alleged occurrences, when evidence has long dissipated, according to Bret Cohen, an attorney with Mintz Levin in New York City.
By taking the case, the Supreme Court agreed to resolve the tension between having a bright-line test for when to start the clock ticking for the statute of limitations (when the employee quits) versus a more blurred line (when the alleged discriminatory conduct occurred). “If the court chooses the bright line, the employee will control when the clock starts to tick entirely and could, in theory, wait a year or more after the wrong conduct occurred,” he said.
“It’s not fair to employers to have to defend against allegations of wrongful conduct that occurred long ago only because the plaintiff gets to pick the statute of limitations date by quitting long after the wrongful conduct allegedly occurred,” he added.
Exhaustion of Remedies Requirement
Individuals seeking to file employment discrimination suits under Title VII and most other federal employment discrimination statutes must first exhaust their administrative remedies. Federal regulations provide that, in a case involving a complaint by an employee of the federal government, a lawsuit is time-barred unless an administrative proceeding is initiated "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action."
Private-sector employees must file an administrative charge of discrimination within 180 days after the alleged unlawful employment practice occurred, or, if state or local proceedings are also initiated, within 300 days after the alleged unlawful employment practice occurred, or within 30 days after receiving notice that the state or local agency has terminated the proceedings under the state or local law, whichever is earlier.
In the case before the Supreme Court, Green initiated administrative proceedings 41 days after his resignation, but more than three months after the allegedly discriminatory conduct had ended.
Although this case involves a federal employee, “the assumption is that whatever rule the court adopts, it will apply to all employers, not just federal-sector employers,” according to Miriam Nemetz, an attorney with Mayer Brown in Washington, D.C.
Circuit Courts Are Split
The position taken by the 10th Circuit in this case is consistent with the views of the D.C. and 7th circuits that the Title VII limitations period for a constructive discharge claim begins to run from the employer's alleged discriminatory act that causes an employee to quit. However, five federal appeals courts have said a constructive discharge claim accrue when an employee actually resigns.
Because of this split in the circuits, “a ruling either way will be a step forward, as it will provide clarity for employers,” Nemetz said.
She added that a ruling affirming the 10th Circuit’s position would enable employers to know as soon as possible if an employee is claiming discrimination in the workplace. They could then address the situation before the employee quits.
“Employers don’t want to deal with stale claims,” she said. “The staler the claim, the harder it can be to investigate what really happened.”
Practical Considerations for HR
Whichever way the court rules, a vital takeaway from this case for HR is the importance of preserving evidence, particularly electronic evidence. “As soon as you get an inkling of an employee having an issue, you should preserve what you can,” Cohen said.
This will be even more important if the court rules for the employee in this case, he added. If that happens, employees may be able to wait months or years after the allegedly improper behavior has occurred before filing a claim. Relevant e-mails or other information may have disappeared by then.
This case also shows the importance of having strong internal reporting mechanisms, Nemetz said. If there are established channels for employees to report discriminatory or other illegal conduct, it is more likely that the employer and HR will not be “the last to hear about a problem.” If there is a problem, it can be addressed “long before it gets to someone leaving and long before it gets to litigation,” she said.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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