The question presented in this case was, in a claim of constructive discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., does the administrative limitations period begin with the last discriminatory or retaliatory act of the employer before the employee resigns, or does it begin instead with the employee’s resignation? A constructive discharge claim can be understood as “an aggravated case” of discrimination or retaliation, in which the employee resigns and then alleges that the employer committed acts of discrimination or retaliation that were so severe that the employee reasonably felt compelled to quit. For employers, and thus of great importance to many of NELF’s supporters, the crucial difference between a constructive discharge claim and the underlying claim of discrimination or retaliation is remedial. The prevailing employee can recover not only for the employer’s discrimination or retaliation but also for his own act of resigning, as if it were a termination for damages purposes. Thus, the prevailing constructive-discharge plaintiff can recover back pay, and possibly front pay, along with any other (economic and non-economic) damages attributable to the employer’s discriminatory or retaliatory conduct, and punitive damages.
An employee suing under Title VII for any claim must first exhaust his administrative remedies by filing or initiating contact with the Equal Employment Opportunity Commission (“EEOC”) within a specified period of time. Failure to do so will most likely bar the employee from suing in court. In particular, a private-sector employee must file his charge of discrimination or retaliation with the EEOC within 180 or 300 days “after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). A federal employee, such as the employee in this case, must initiate contact with an EEOC counselor for potential settlement “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.” 29 C.F.R. § 1614.105(a)(1) (emphasis added). The parties in this case have focused on the italicized language as the applicable regulatory provision. As with a statute of limitations, the purpose of this filing deadline is to require employees to act promptly in enforcing their rights, to protect employers from having to defend old claims, and to provide employers with certainty and repose that, after a date certain, they will not have to defend their actions in litigation.
NELF argued, in its amicus brief on the merits, that in a claim for constructive discharge, as with most any other claim of discrimination or retaliation under Title VII, the administrative limitations period begins with the employer’s last discriminatory or retaliatory act, not with the employee’s resignation in response to that conduct. This is required by the plain language of the limitations provision applicable to federal-sector employees under the EEOC regulation, and by Title VII’s general provision applicable to both private-sector and state employees. And the Court has already interpreted Title VII’s limitations provision as focusing on the employer’s challenged conduct, not on the injurious consequences to the employee. Delaware State College v. Ricks, 449 U.S. 250 (1980). Ricks should apply here because the relevant language in the EEOC regulation is synonymous with Title VII’s limitations provision, and because neither provision treats constructive discharge claims differently from the “traditional” discrimination claim discussed in Ricks.
Moreover, NELF pointed out that the Court has observed that Congress would have been well aware of constructive discharge claims when it enacted Title VII. Pennsylvania State Police v. Suders, 542 U.S. 129, 141-42 (2004). And yet Congress made no special allowance concerning the timeliness of constructive discharge claims. Therefore, Congress should be deemed to have rejected any differential treatment for the filing of constructive discharge claims by private-sector and state employees under Title VII. And the EEOC, in turn, should be deemed to have followed suit with its similarly worded provision for federal employees.
Suders also held that, in a constructive discharge claim under Title VII, the employee’s decision to resign is not an action imputed to the employer. Instead, the resignation remains a separate act of the employee. Therefore, the resignation is not an “alleged unlawful employment practice” under Title VII or a “matter alleged to be discriminatory” under the EEOC regulation. While the employer may indeed be liable in damages for the employee’s resignation as if it were a termination, Suders carefully distinguished the employer’s monetary liability from any vicarious liability for the employee’s resignation. The employer is liable in damages for the employee’s reasonable resignation simply because the resignation is a foreseeable consequence of the employer’s proven wrongful conduct.
After all, Suders explained that a constructive discharge claim is merely “an aggravated case” of discrimination or retaliation. A constructive discharge claim is a dependent claim that rides “piggyback” on the underlying claim of discrimination or retaliation. The only difference between a constructive discharge claim and the underlying claim of discrimination or retaliation is the severity of the employer’s wrongful conduct, and hence the applicable measure of damages. There is no reason, therefore, why the limitations period should be any different for the constructive discharge claim merely because the employee is seeking additional remedies that would not apply in the underlying claim of discrimination or retaliation.
Finally, Suders teaches that a constructive discharge claim is an objective inquiry, asking whether the employee’s resignation was a reasonable response to the employer’s challenged conduct. The facts necessary to determine such reasonableness are generally established once the employer has taken official action against the employee, or when a supervisor or co-worker has committed the last in a series of related acts of harassment against the employee before he resigns. At that moment in time, the employee is most likely on notice that resignation may be the only reasonable response to the employer’s allegedly severe conduct. Therefore, this inquiry focuses on the severity of the employer’s disputed conduct. It does not concern the particular timing of each employee’s resignation. Accordingly, the employer’s conduct should begin the limitations period, not the employee’s subsequent resignation in response to that conduct.
On May 23, 2016, the Supreme Court issued its decision. Disagreeing with NELF’s conclusion, the Court held that because “the matter alleged to be discriminatory” in a constructive discharge claim is an employee’s resignation, the limitations period for such actions begins running only after an employee resigns. Justice Alito filed a concurring opinion in which, while he agreed with the Court’s conclusion, he pointed out the problems with the majority’s conclusion and suggested a slightly different framework of analysis. Justice Thomas was the sole dissenter.