The Supreme Court has ruled that the limitations period for filing a constructive discharge action under Title VII of the Civil Rights Act of 1964 (“Title VII”) runs from the date an employee resigns—not from the date of the employer’s last alleged discriminatory act.[i] As explained in this article, the Green v. Brennan decision does not change employees’ or employers’ substantive rights, but does provide clarity as to when a former employee must file a constructive discharge claim.
Overview of Constructive Discharge Claims
An employee who voluntarily resigns generally may not claim that the resignation was discriminatory under Title VII based on his or her race, color, religion, sex, or national origin. However, an employee may bring a claim for “constructive discharge” under Title VII “when an employer unlawfully creates working conditions so intolerable that a reasonable person in the employee’s position would feel forced to resign.”[ii] A plaintiff’s burden in proving a constructive discharge claim is “substantial.”[iii]
Green v. Brennan
Like all Title VII claims of discrimination, a plaintiff claiming constructive discharge must first file a charge with the Equal Employment Opportunity Commission (“EEOC”) and obtain a notice of right to sue before filing a discrimination lawsuit.[iv] Depending on the state, employees and former employees of private employers generally must file an EEOC charge either within 180 or 300 days of an alleged discriminatory act.[v]
Before Green v. Brennan, the Circuit Courts of Appeals were split as to whether this limitations period began running on the date of the last discriminatory act (in Green, the date on which the employer forced the employee to resign or transfer) or on the date of resignation (see related article). In Green, a majority of the Supreme Court[vi] held the limitations period begins to run “only after a plaintiff resigns,” and further clarified that the date of resignation is the date an employee notifies his or her employer of the resignation—not the last day of work.
The Green decision is being viewed by some as a win for plaintiffs;[vii] however, the decision likely will have little practical effect in most constructive discharge cases. The Green decision does not change employees’ or employers’ substantive rights in discrimination lawsuits, but does provide clarity as to when a constructive discharge claim is actionable.
Employers may rely on the decision to accurately calculate when the employer has exposure to Title VII claims for constructive discharge. As always, employers should take steps to minimize the risk of constructive discharge claims by, among other things, maintaining a policy that requires employees to report any concerns of discrimination or harassment, thoroughly investigating such claims, and ensuring complaining employees are not subject to retaliation.
Employers are urged to contact their employment counsel with specific questions relating to constructive discharge claims.
[i] Green v. Brennan, No. 14-613, ___ S. Ct. ___, 2016 WL 2945236 (2016).
[ii] Lockheed Martin Corp. v. Admin. Review Bd., U.S. Dep’t of Labor, 717 F.3d 1121, 1133 (10th Cir. 2013); see also Pennsylvania State Police v. Suders, 542 U.S. 129, 143 (2004) (“Title VII encompasses employer liability for constructive discharge”).
[iii] Lockheed Martin, 717 F.3d at 1133.
[iv] Khader v. Aspin, 1 F. 3d 968, 970 (10th Cir. 1993); see also 42 U.S.C. § 2000e-5(b), (c), (e), (f)(1); 42 U.S.C. § 2000e-16(c) (concerning employees of federal government).
[v] 42 U.S.C. § 2000e-5(e)(1). In Colorado a charging party has 300 days in which to file a charge of discrimination. Employees of federal agencies have a shorter limitations period and must contact an EEOC counselor within 45 days of the alleged discriminatory act. 29 C.F.R. § 1614.105(a)(1) (2015). This 45-day period applied in Green v. Brennan, although the reasoning of the case applies to non-government employees.
[vi] Justice Sotomayor wrote the majority decision, which was joined by five other justices. Justice Alito filed a concurring opinion and Justice Thomas filed a dissenting opinion.