Tuesday, December 1, 2015

SCOTUS Arguments: The timing of constructive discharge cases

Sometimes, workplace harassment gets so bad that an employee has no choice but to quit. Technically, he wasn't fired. However, in such extraordinary circumstances, courts will treat the resignation as though it were a termination. We call it "constructive discharge."

Yesterday, the Supreme Court heard oral arguments in Green v. Brennan (transcript here). For more case info and docs, check out the SCOTUSblog case page here. Federal employees must bring discrimination claims within 45 days - but within 45 days of what exactly? In a constructive discharge case, is it the date the employee resigns? Or the date of last discriminatory/harassing act by the employer?

If there's one thing I'm terrible at, it's predicting the future. But I will try anyway. If I had to guess, SCOTUS will hold that the time to file begins to run with the resignation of the employee. It's often easier to determine than the date of the last discriminatory act; and there's a pretty solid argument that the resignation is itself part of the discrimination claim (because we pretend it's like a firing, right?).

Of course, there are also good counterarguments. If the employer has not taken any real discriminatory action within the 45-day time period, then why wouldn't the Court conclude that time has expired? There's also concern that the employee can intentionally delay by not resigning for awhile - that said,  too long of a delay makes it hard to argue that the employee was really constructively discharged. For example, if he waited for a year, how could he argue that he had no choice but to resign from an environment that had been free of harassment for an entire year?

Based on the arguments, I'm still betting that the Court will go with the date of the resignation as the timing marker. There was some argument that the Court's decision should address the timing of private sector constructive discharge cases as well. While I'm making bold predictions, let me go ahead and predict that the Court will not accept that invitation. When was the last time the Court said, "here's a broad rule that should apply not only to the issues presented in this case, but in a whole bunch of situations that weren't even presented in this case!" Not gonna happen. However, I think lower courts will go ahead and apply whatever rule comes out of this case to private sector cases anyway.

The decision will probably come out in a few months, so stay tuned.

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