Constructive Discharge Case Could Expand Title VII's Time for Filing Charges of Discrimination, Even Without Discriminatory Allegations
The U.S. Supreme Court will determine whether the time period for filing a charge of discrimination alleging constructive discharge begins to run from the last alleged discriminatory act (the minority view) or the date of the employee’s resignation (the majority view). This ruling could expand the time period an employee may file a charge of discrimination for constructive discharge claims, even if the last alleged discriminatory act occurred outside the time period for filing a charge of discrimination (45 days for federal employees and 180 days for private employees).
In Green v. Donahoe, the Tenth Circuit Court found plaintiff’s (a federal employee) constructive discharge claim was barred because it was not timely brought. The plaintiff last alleged discriminatory conduct on December 16, 2009, and submitted his retirement papers effective March 31, 2010. Plaintiff began to seek redress for his constructive discharge on March 22, 2010, however, Plaintiff did not allege any discriminatory conduct after December 16, 2009. The Tenth Circuit held that Plaintiff’s constructive discharge claim was time barred because time for filing the charge of discrimination began on the date of the last alleged discriminatory act (here, December 16, 2009), and Plaintiff sought redress well beyond the time period allowed to file a charge of discrimination. The case is now pending in front of the Supreme Court.
A. There is a Circuit Split Regarding the Time for Filing Charges of Discrimination.
There are two rules of thought for when the period to file a charge of discrimination for a constructive discharge claim begins to run. The majority of circuits hold that the period to file a charge of discrimination for a constructive discharge claim begins the day they resign (the “date-of-resignation rule”). The minority of circuits hold that the period to file a charge of discrimination for a constructive discharge claim begins on the date of the last alleged discriminatory act prior to the employee’s resignation (the “last discriminatory act rule”).
B. Summary of Arguments Made to the Supreme Court
1. The Date of Resignation Arguments
On November 30, 2015, the Supreme Court heard oral arguments in Green regarding the proper time period to file a charge of discrimination for a constructive discharge claim. The plaintiff argued the Supreme Court should reverse the Tenth Circuit’s ruling because the employee must resign before a constructive discharge claim can be brought, and a filing period based on the date of resignation is more consistent with the Supreme Court’s cases on timeliness. The plaintiff stated that the last discriminatory act rule is difficult to identify and unnecessarily complex, as opposed to the date-of-resignation rule.
2. The Last Discriminatory Act Arguments
Amicus appointed by the Supreme Court to defend the last discriminatory act rule asked the Court to uphold the Tenth Circuit ruling and hold that the proper period to file a charge of discrimination begins to run from the date of the last alleged discriminatory act. Amicus argued that the regulation setting the filing period clearly requires identification of the alleged discriminatory act and when it occurred. Amicus also stated the policy behind the regulation, to prevent discrimination and try to correct it as soon as possible, would be better served by adhering to the filing period beginning with the last alleged discriminatory act, as opposed to the date of resignation.
C. The Green Decision’s Potential Impact on Employers
If Green is overturned, employers could be subjected to charges of discrimination being filed for constructive discharge cases well after the time for filing the charge has past and even where Plaintiff has not made allegations of discrimination during this time. For example, an employee who resigns a year after the last alleged discriminatory act could still bring a charge of discrimination without the charge being time barred. This would put employers in the difficult position of defending a charge where key witnesses—assuming they are still available—must recall events that are over a year old. Without notice of any alleged discriminatory conduct, companies would have no reason to send out litigation hold notices to key witness employees requesting that they retain hard copy and electronic files related to the employee because the company would have no knowledge of anticipated litigation, since no timely charge of discrimination was filed. By the time the aggrieved employee resigns, key witness employees may have discarded or deleted documents, voicemails, or other evidence that would be critical to the employer’s defense.
The Supreme Court is expected to resolve the current circuit split regarding when the period to file a charge of discrimination for a constructive discharge claim begins to run. When the Court issues its decision, we will update you on the outcome and best practices moving forward.
 Green v. Brennan, No. 14-613 (U.S. argued Nov. 30, 2015).
 For federal employees, see 29 C.F.R. § 1614.105(a)(1) (requiring that “[a]n aggrieved person must initiate contact with a Counselor 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”). For private employees, see 42 U.S.C. § 2000e-5(e)(1) (180 days to file under Title VII); see also 42 U.S.C. § 12117(a) (incorporating the Title VII process for ADA complaints); 29 U.S.C. § 626(d)(1) (setting forth the same time limits for ADEA complaints). If the state has its own employment discrimination law enforced by a state agency or authority, the employee has three hundred (300) days to file a charge of discrimination with the state agency or authority. See 42 U.S.C. § 2000e-5(e)(1).
 Constructive discharge claims are brought against employers by former employees claiming intolerable workplace discrimination or conditions forced them to resign. See, e.g., Lockheed Martin Corp. v. Admin Review Bd., 717 F.3d 1121, 1133 (10th Cir. 2013).
 Green v. Donahoe, 760 F.3d 1135, 1138 (10th Cir. 2014).
 Id. at 1142.
 Id. at 1145.
 Young v. Nat’l Ctr. for Health Servs. Research, 828 F.2d 235, 238 (1987); Hukkanen v. Int’l Union of Operating Eng’rs, Hoisting & Portable Local No. 101, 3 F.3d 281, 285 (8th Cir. 1993); Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1111 (9th Cir. 1998); American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 123 (1st Cir. 1998); Flaherty v. Metromail Corp., 235 F.3d 133, 138-39 (2d Cir. 2000).
 Davidson v. Indiana-American Water Works, 953 F.2d 1058, 1059 (7th Cir. 1992); Mayers v. Laborers’ Health & Safety Fund of North America, 478 F.3d 364, 370 (D.C. Cir. 2007) (per curiam); Green, 760 F.3d at 1144 (10th Cir. 2014).
 Argument Tr., Green v. Brennan, http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-613_bpmc.pdf.
 Id. at 3:10-14. Green argued the cause of action on a constructive discharge claim is not “fully formed” until the employee resigns; thus, the filing period should not run prior to the employee’s resignation. Id. at 6:16-20.
 Id. at 3:18-19.
 Id. at 15:12-14.
 Id. at 37:20-22; 49:14-17.
 Id. at 38:9-25; 39:1-6. 29 C.F.R. § 1614.105(a)(1) is the regulation Amicus says is unambiguous.
 Id. at 52:20-24.
 Litigation hold notices are sent to comply with court rules requiring an employer to preserve hard copy and electronic documents related to the aggrieved employee when the employer knew or should have known of anticipated litigation. Failure to preserve such documents can result in the Court issuing an adverse inference instruction at trial.