This piece is cross-posted from Alliance for Justice’s blog
Sometimes, an employer’s harassment becomes intolerable. Sometimes, the only reasonable thing to do is quit. The law recognizes this: if you have experienced such egregious sexual or racial harassment or other forms of discrimination at work that you are in essence forced out of your job, this is considered a “constructive discharge,” equivalent under law to a discriminatory termination. But the law also imposes strict time limits for bringing a charge challenging an employer’s discrimination. So in the case of a constructive discharge, when did the unlawful discrimination occur? On the last day that the employer took some discriminatory action against you? Or on the day that you—very reasonably—quit your job to escape the discrimination?
On Monday, the Supreme Court heard oral arguments in Green v. Brennan, a case that will determine when an employee who has been constructively discharged—meaning she faced such intolerable discrimination in the workplace that she had no real choice other than to quit—must bring a case challenging that discrimination. The Court will ultimately decide whether, under Title VII, the time limit for bringing a constructive discharge claim begins to run when an employee resigns or at the time of an employer’s last discriminatory act prior to the resignation.
Marvin Green, a postmaster for the Postal Service, filed a formal race discrimination charge with the Post Office’s Equal Employment Opportunity Office when he suspected that he was passed over for a promotion because of his race. Once he filed his complaint, he alleged, his situation at work only got worse. According to his complaint, Mr. Green’s supervisors threatened him with criminal prosecution for a baseless charge, and suspended him without pay and without prior notice. He eventually resigned in February 2010, effective the first day of March 2010, and filed his constructive discharge suit forty-one days later, alleging that his employer unlawfully retaliated against him for filing a discrimination charge and that this retaliation forced him to quit. Federal employees like Mr. Green must file discrimination or retaliation complaints within 45 days of experiencing the challenged discrimination or retaliation.
The question before the Court is whether the 45-day limit should be counted from the date of Mr. Green’s resignation, or that of the last action by the Postal Service that precipitated his resignation. If the time for filing a claim is considered to have begun when he resigned, then Mr. Green’s claim is timely and his case can move forward. But if the Court decides that the clock for filing a constructive discharge claim began at the time of the employer’s last discriminatory act, Mr. Green’s case will be time-barred.
Why does this matter? If the clock starts to run from the employer’s last discriminatory act, then strangely an employee’s time to file a constructive discharge claim begins to run out before the employee has even left the job—that is, before the constructive discharge has even occurred. Instead, it would be up to the employee to figure out what exactly constitutes an employer’s “last discriminatory act.” This may be no easy feat. Notably, most constructive discharge claims are brought in sex discrimination cases, frequently in cases challenging hostile environment sexual harassment. And in these cases, often the employer’s discrimination is its failure to take action to address the discrimination. If the clock for bringing these claims doesn’t begin to run when the employee reasonably decides she can’t continue to work for the employer due to the harassment, when would it begin? The rule the Court ultimately chooses is particularly important for workers struggling with sexual harassment on the job.
The good news for those workers is that during oral arguments, a majority of the Court seemed unwilling to accept the argument that the 45-day clock for filing a constructive discharge claim begins at the time of the “last discriminatory act.” Both Brian Wolfman, the attorney for Mr. Green and Curtis Gannon, the Assistant to the Solicitor General appearing for the Postal Service and federal government, argued that a constructive discharge claim requires a decision to resign in addition to the discriminatory employer action. As Wolfman pointed out [PDF] to the justices, “Until the employee actually says ‘I’m quitting,’ there has not been a constructive discharge.” Even Chief Justice Roberts seemed sympathetic to this argument, noting, “People are in jobs and they’re…suffering this particular type of adverse work or discrimination, but quitting your job is a very big deal.”
Starting the clock at the date of the employee’s resignation is a workable, clear rule that best reflects the realities of the workplace and the ways in which discrimination manifests both through overt acts and through failures to act. An employee bringing a constructive discharge claim already faces a tough battle in court to prove that resignation was a reasonable response to discriminatory working conditions. The Court should not place yet another obstacle in the path of these employees’ ability to enforce their legal rights.