Accommodation claim survives close shave at the Third Circuit

"Close shave" - It's a case about a guy with a skin condition, pseudofolliculitis barbae (PFB), who sought an accommodation to not have to shave his face or neck - get it? Full not precedential opinion here: Lewis v. Univ. of Penn.

The Plaintiff/Appellant succeeded in reversing summary judgment on three interesting issues (the Court hit even more issues, but these are just the highlights):

Constructive Discharge

Not official use. 

Constructive discharge is a resignation that is treated like an involuntary firing under the law. Courts look for an abusive and intolerable environment in which a reasonable person would feel compelled to resign. In Lewis, the Court held that evidence of the following was sufficient for a constructive discharge claim to survive summary judgment:

Lewis’s superiors disciplined him, altered his job responsibilities, removed him from a preferred assignment, and threatened Lewis with discharge.

Interactive Process

I try to emphasize this point with employers - yes, there are a bunch of technical requirements about what counts as a disability, what is a reasonable accommodation, when an accommodation constitutes an undue hardship . . . but the ADA requires that employers participate in an interactive process. So, make an effort to engage with the employee to see what you can do to help. As the Court described it, the employer must "engage in a good faith interactive process to identify accommodations."

The trial court dismissed the ADA claim because Lewis never expressly requested his desired accommodation (exemption from a medical certificate requirement). The Third Circuit reversed because Lewis had requested a related accommodation and the employer knew about his disability. This triggered their obligation to engage in the interactive process to identify a reasonable accommodation. Lewis claims he just got a flat denial with no effort to communicate about his needs.

Medical certificate counts as "disability-related inquiry"

Subject to some exceptions, the ADA generally prohibits disability-related medical examinations  and inquiries. Interestingly, the Court relied on EEOC Enforcement Guidance for the definition. "Disability-related inquiries may include . . . asking an employee to provide medical documentation regarding his/her disability." Here, the employer required some kind of medical certificate, so the trial court on remand will have to address whether it was for a legitimate purpose.

Quick take: SCOTUS holds that constructive discharge claim accrues upon notice of resignation

A few minutes ago, the Supreme Court issued its opinion (7-1) in Green v. Brennan.

Federal servants who want to sue their employer for discrimination under Title VII must contact the EEOC "“within 45 days of the date of the matter alleged to be discriminatory.” 29 CFR §1614.105(a)(1)." A constructive discharge claim is one in which the employee technically quits - but only because (s)he faced intolerable discrimination in the workplace. Courts generally treat a constructive discharge like a firing.

When does a claim like that accrue (triggering the 45-day period)? You have a few choices... the date of the last discriminatory act; the effective date of the resignation; or the date of notice of resignation. We have an answer (bragging time: I totally called it!):

[W]e hold that a constructive-discharge claim accrues—and the limitations period begins to run— when the employee gives notice of his resignation.

Off the top of my head, I can't think of any reason why this analysis would not hold for analyzing the running of the statute of limitations in similar discrimination claims against private employers (but candidly admit that I have not had occasion to fully research that issue).

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.

Can I Just Quit and Claim Constructive Discharge?

If you want to sue your employer for losing your job, it generally helps if you were fired instead of quitting. However, under some circumstances, employees can claim they were "constructively discharged."

A recent Middle District of Pennsylvania case reiterated the "Clowes factors" that federal courts in the Third Circuit (including Pennsylvania) use to determine whether an employer constructively discharged an employee:

(1) threat of discharge; 

(2) suggesting or encouraging resignation; 

(3) a demotion or reduction of pay or benefits; 

(4) involuntary transfer to a less desirable position; 

(5) alteration of job responsibilities; and 

(6) unsatisfactory job evaluations.

Woods v. Salisbury Behavioral Health, Inc., 3:CV-13-539, 2014 WL 957342 (M.D. Pa. Mar. 12, 2014); quoting Clowes v. Allegheny Valley Hosp., 991 F.2d 1159 (3d. Cir. 1993).

I should note that the Clowes factors are not necessarily determinative. Courts engage in a broader inquiry: "an objective test to determine whether an employee can recover on a claim of constructive discharge ... [specifically,] whether a reasonable jury could find that the employer permitted conditions so unpleasant or difficult that a reasonable person would have felt compelled to resign." Woods; quoting Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir.2001).