We interrupt our regularly scheduled program with this breaking news: Yesterday, the US Supreme Court handed down another employment law decision. This time it’s an actual decision and not a decision not to decide (click here for that post.) So what is it? The case name is Green v. Brennan and I previously mentioned it in this post. What’s this ruling about? Does it mean anything for you as an employer? Find out after the jump…
Green v Brennan is a constructive discharge claim under Title VII.
First what is constructive discharge? A constructive discharge under Title VII (or other anti-discrimination laws) occurs when an employer, in violation of Title VII makes working conditions so intolerable for the employee that s/he feels forced to resign. The most common examples might be sexual or racial harassment.
This Title VII case differed slightly from others we’ve discussed, in that it involved a federal civil employee. Title VII requires that aggrieved federal civil employees “must initiate contact with a counselor within 45 days of [the] date of the matter alleged to be discriminatory.” Here was the question: 45 days from when? Mr. Green’s employer, the US Postal service argued that the clock starts running from the date of the last allegedly discriminatory act. Mr. Green argued that the 45 days runs from the date of the resignation. You can probably guess that Mr. Green filed his EEOC charge more than 45 days after the last allegedly discriminatory act. Hold that thought, because I’ll be back to that in a moment.
Here’s a brief factual recap: Mr. Green, an African-American (then the US Postmaster for Englewood, CO) alleged that he applied for a vacant postmaster position in Boulder but he was passed over because of his race. Shortly thereafter two of his supervisors accused him of intentionally delaying mail delivery, a criminal offense. The Office of the Inspector General investigated and determined that further investigation was not warranted, but Mr. Green’s supervisors issued thinly veiled threats of criminal charges. The parties entered into a settlement agreement on December 16, 2009, in which Mr. Green had the choice of transferring to a lower-paying position or retiring, effective March 31, 2010. Mr. Green chose retirement/resignation, submitting his paperwork on February 9. He filed his EEOC charge on March 22 — 41 days after submitting his resignation, but 96 days after signing the settlement agreement. You see now why the US Postal Service argued that the last allegedly discriminatory action starts the clock running, right?
The United States District Court in Colorado and the 10th Circuit Court of Appeals agreed with the US Postal Service. The US Supreme Court reversed. Justice Sotomayor, writing for the majority, reasoned that a constructive discharge claim, by definition, cannot begin to accrue before an employee resigns. There is nothing in Title VII that contradicts the basic premise that a limitations period cannot begin before a potential plaintiff has a cause of action (i.e. potential claim). To hold otherwise would be negate Title VII’s remedial purposes.
So, what does this mean for employers? Does the fact that this case involved a federal civil employee, with a shorter statute of limitations matter? Probably not. In matters involving private employers, the statute of limitations is 180 days to file a charge with the EEOC and 300 days to file a charge with a state agency. So, when the employer is a private entity, the 180 or 300 days would begin to run from the date of the employee’s resignation.
What should you do if you are a private employer? As always, you should take proactive steps to avert these claims in the first place. This of course means up-to-date policies and procedures, monitoring compliance, training, and prompt, thorough investigations of any discrimination or harassment allegations. If, despite those best efforts an employee still feels s/he must resign, mark that date on the calendar and mark the end of the 180 and 300-day periods on the calendar as well–and, of course, make sure you have and maintain adequate documentation of everything. What should a federal employee do? The same thing, except count 45 from the date of resignation.
OK, this is a slightly shorter post, but it’s an “extra”. We’ll be back with more, bright and early on Thursday morning, so c’mon back here then — or check your email if you’re a subscriber. Bye for now!
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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