Under Title VII, an employee can allege not only that he actually was discriminatorily discharged but also that he was “constructively discharged” as a result of discriminatory actions that would have caused a reasonable person to resign. In Green v. Brennan, No. 14-613 (U.S. May 23, 2016), the U.S. Supreme Court held that the time for filing a constructive discharge claim runs from the employee’s resignation date and not from the date of the last discriminatory act. In doing so, the Court overturned a lower court ruling that the employee waited too long to file his constructive discharge claim.

Unlike private sector employees who have up to 300 days to file an EEOC charge of discrimination, federal sector employees have forty-five days to initiate contact with an Equal Employment Opportunity (“EEO”) counselor. After Marvin Green (“Green”), a U.S. Postal Service (“USPS”) employee, complained to his employer that he was denied a promotion because he was black, he was accused of the crime of intentionally delaying the mail. Pursuant to an agreement with Green, the USPS agreed not to pursue criminal charges and Green agreed either to retire or accept another position in a remote location for much less money. Forty-one days after resigning and ninety-six days after signing the agreement, Green reported an unlawful constructive discharge to a USPS EEO counselor. The lower court determined his contact with the EEO counselor was untimely because it was filed ninety-six days from the date he signed the agreement (which it said was the last discriminatory act) even though the notification was forty-one days from the date of his resignation and thus within the forty-five day limitations period.

In overturning the lower court decision, the Supreme Court held that the forty-five day limitations period begins to run from the date of Green’s resignation and not from the date he signed the agreement (the last discriminatory act). In doing so, the Court reasoned that until an employee resigns, he does not have a claim for constructive discharge. Thus, the Court determined that the limitations period runs from the date an employee gives notice of his intent to resign and not some other date when the last discriminatory act before resignation allegedly occurred.

This case is important because it establishes a relatively bright line for when a constructive discharge occurred. Although this case arose in the federal sector with its shorter forty-five day limitations period, it is anticipated that the same principles likely will be applied to the longer EEOC charge filing limitations period available to private employees.

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Thomas R. Bagby
Labor and Employment Group