Many employees experience actions that they believe are wrong, eventually leading them to voluntarily quit just to get away from what they believe is a bad situation. This is what is called “constructive discharge.” Oftentimes the employee’s reason for resigining is perceived retaliation for having complained about one or another circumstance the he deems inappropriate or, worse, illegal.
Although employers should be aware of bad behavior by their managers, they cannot always be aware of everything. And even if HR conducts an exit interview, it often gets only “for a better opportunity” as the reason for leaving, and sees no reason to pursue it any further.
But now the U.S. Supreme Court has ruled that the time to file a charge with the EEOC begins at the time of the constructive discharge, not the time of the act(s) complained of. In other words, a departed employee can incorporate a myriad of real or perceived bad acts by management, committed over an extended period of time, into a single claim of constructive discharge. That makes a truly effective Exit Interview more important than ever for HR to perform for all “voluntary” terminations.
The Supreme Court ruled in the Ledbetter case back in 2007 that an employee or ex-employee has 180 days (or 300 days depending on a state’s time frame) from the time of the incident to file a charge. In that case, Lily Ledbetter was a supervisor for Goodyear who found out after she retired that she had been paid significantly less than her male counterparts. She filed a charge and then a lawsuit, claiming that the ticking of her time clock for a discrimination charge should have begun when she first gained knowledge. The Supreme Court disagreed and ruled that a charge could only be filed within the appropriate time after the actions being complained of; in other words, within 180 days of the first disparate paycheck, even if she had no knowledge of the disparity.
But the Ledbetter case was a pay discrimination case. Now the Supreme Court has carved out an exception to the Ledbetter rule in a constructive discharge case. In a 7-1 decision, it ruled that the time clock starts ticking when the constructive discharge happens, not when the aggrieved employee first becomes aware of the behaviors in question.
In the case of Green v. Brennan, No. 14-613 (May 23, 2016), Marvin Green was serving as the postmaster for Englewood, Colorado when he applied for a promotion to a vacant postmaster position in Boulder in 2008. He was passed over for the job. Shortly thereafter, Green complained he was denied the promotion because of his race.
Green later alleged that because of his complaint his supervisors accused him of intentionally delaying the mail—a criminal offense. On December 16, 2009, Green and the Postal Service signed an agreement where he could retire in lieu of other actions that could be taken against him. On February 9, 2010, he resigned effective March 31. On March 21, he filed a charge that he was discriminated against again, this time by being forced to “voluntarily resign” from his job in violation of Title VII.
Green filed a lawsuit against the Postal Service. Under the federal statute, federal employees have 45 days from the acts complained of to file a charge. The Department of Justice, in the government’s defense, argued that the time period began back in 2008 and early 2009, well more than 45 days from Green’s filing. Both the trial court and the 10th Circuit Court of Appeals agreed with the DOJ.
The Supreme Court thought otherwise. First, the Court considered that a claim of constructive discharge has two basic elements: the alleger must prove first that he was discriminated against by his employer to the point where a reasonable person in his position would have felt compelled to resign; and, he must also show that he actually resigned. The Department of Justice argued that this date can be arbitrary, including years after the alleged offending behavior(s). The Court, noting the circumstances of Green’s resignation, said that it made no sense to effectively require the employee to file a charge before resigning, or force him to resign in order to file the charge. The Court then ruled that a constructive-discharge claim accrues—and the limitations period begins to run—when the employee gives notice of his resignation. The court then sent the case back to the Tenth Circuit to determine, in the first instance, the date that Green in fact gave notice.
The takeaway from this case is that HR needs to know if a voluntary quit is really a voluntary quit. Exit interviews should be a SOP for all HR departments. Failure to do so could bring unwanted attention of issues long past and allegedly resolved. Further, it is important that HR train all managers on retaliation. No one likes complaints against them; many a manager has taken such complaints personally and reacted stupidly. Training should help reduce the possibility of both an initial EEO complaint and retaliation by the “aggrieved” manager.
ASE can help with its online exit interview tool. Contact Ed Holinski at eholinski@aseonline.org for more information.