HR News, Human Resources

Employee Lawsuits May Have Just Gotten Easier

The Supreme Court of the United States just set forth a ruling that may make it easier for employee lawsuits to stand up in court. Employers are not going to be happy about this. :/

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Have you ever heard of a “constructive discharge”? If not, then let’s get you familiar with the term because this claim may be coming to a lawsuit near you!

Constructive discharge occurs when an employer makes an employee’s working conditions so hard to deal with —using illegal actions, like harassment or discrimination — that the person felt they had no other option, but to resign.

Federal law requires private sector employees to file a charge of harassment, discrimination or constructive discharge with the EEOC within 180 days from the day the illegal act took place if the goal is to press charges in federal court. The deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination or harassment on the same basis. Federal employees have only 45 days to contact an Equal Employment Opportunity (EEO) counselor if they wish to eventually to file a charge.

Green v. Brennan (Postmaster General)

HRMorning.com contributor,   wrote this explanation of the case:

“In late 2009, Green complained to USPS management that he’d been denied a promotion because he was African-American. From there, his relationship with the USPS entered a downward spiral that eventually led to his supervisors accusing him of deliberately delaying the mail (a federal offense).

Then, on Dec. 16, 2009, both parties signed an agreement in which the USPS agreed not to pursue criminal charges in exchange for Green either retiring or accepting a position in a remote location for far less pay. Green elected to retire and submitted his resignation on Feb. 9, 2010 (effective March 31).

On March 22, Green contacted an EEO counselor and alleged that he was constructively discharged. He then filed suit in federal district court, which dismissed his charges on the basis that it was untimely because he failed to contact an EEO counselor within 45 days of Dec. 16, the date he signed the agreement.

Green appealed, and the case made it all the way to the Supreme Court, which ruled in Green’s favor when it came to the start of the 45-day limitations period.

It said the period begins on the date an employee resigns.

The reasoning

The court said in cases in which an employee claims to have been fired for discriminatory reasons, the matter alleged to be discriminatory includes the discharge itself. Therefore, the 45-day limitations period begins when the employee is discharged.

The justices applied that same line of thinking to constructive discharge cases — saying that the matter alleged to be discriminatory includes the employee’s resignation.

Two reasons it did this:

  • It said a resignation is part of the elements of a constructive discharge claim. So without a resignation, the claim can’t even exist, and
  • It said requiring that a complaint be filed before resignation occurs would ignore that an employee may not be in a position to leave his job immediately.

Far-reaching effect

While this case dealt with a federal employee’s obligation to report to an EEO counselor within 45 days, it indicated that lower courts could apply the same reasoning to the 180/300-day periods imposed upon private sector employees.

One could even surmise that the ruling could also apply to state anti-discrimination and anti-harassment laws as well.”

So now you know. What will you do to secure your business against this sort of claim? Have you trained your managers and supervisors? If not, then it’s time to get going with a program to make sure everyone understands how to proceed when difficult employment issues arise at your place. Remember, no employer is lawsuit-proof – audit-proof. But, you can be audit-secure. (lawsuit-secure)

Until Next Time, Be Audit-Secure!

Lisa Smith


Lisa Smith is CEO of Andere Development, LLC and Chief Content Developer at BeAuditSecure.com. Follow her on Twitter, connect with her on LinkedIn, listen to her Small Business Spoonfuls Podcast, and find more from her in Audit-Secure Authority at BeAuditSecure.com.

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