Gold scales of justice

Yesterday the United States Supreme Court issued a 7-1 opinion in Green v. Brennan.  Justice Sotomayor authored the majority opinion, which vacated and remanded the Tenth Circuit’s dismissal of Plaintiff Marvin Green’s race discrimination and retaliation complaint on timeliness grounds.

Green complained to his employer, the United States Postal Service, that he was passed over for a promotion because of his race.  After his complaint, the Postal Service accused Green of intentionally delaying the mail (which is a crime).  The Postal Service and Green signed an agreement on December 16, 2009, in which the Postal Service promised not to press criminal charges and Green agreed to retire or accept a much lower-paying job in a remote location.  With those choices before him, Green chose to retire on February 9, 2010.

Before he could file a lawsuit under Title VII, Green was administratively required to contact an Equal Employment Opportunity counselor to report the unlawful constructive discharge, which he did on March 22, 2010 (41 days after resigning and 96 days after the agreement was signed).  The law requires federal employees like Green to contact the EEO counselor within 45 days of the “matter alleged to be discriminatory,” which ended up being the ultimate issue in the case.

The lower courts dismissed Green’s complaint as untimely because they held the 45-day period started running on December 16 when Green and the Postal Service signed the agreement.  The Supreme Court thought otherwise, holding the employee’s resignation is part of the “matter alleged to be discriminatory” in a constructive discharge and thus the 45-day period doesn’t start running until the employee resigns.

In an article for Slate, Mark Joseph Stern pointed out the importance of this ruling for employees who are in similar hostile workplace environments:  “[I]f employees had to report direct discrimination within 45 days of the event, many would be put in an unenviable position:  They could either allege discrimination and stay in that now likely more toxic environment, or quit and lose their paycheck.  Sotomayor’s decision avoids forcing workers into this nasty quandary.  Instead, it allows wronged employees to leave the workplace then bring a constructive discharge claim within 45 days of that departure, counting their resignation as the culmination of unbearable discrimination.”

With only Justice Thomas dissenting (Justice Alito also filed a concurring opinion), this is a solid victory for Mr. Green and future constructive discharge plaintiffs.

The timelines at issue in the Green case apply to federal employees, but it is reasonable to think the holding may extend beyond federal employees to apply in theory to private claims of discrimination.  For more information on the process for federal employees, see the United States Equal Employment Opportunity Commission’s overview.  Private employees have longer deadlines to file a complaint (for federal information, see this overview; for state information, see the Iowa Civil Rights Commission’s overview).

photo credit: <a href=”″>Balance Scales (Ethics)</a> via <a href=””>photopin</a&gt; <a href=””>(license)</a&gt;



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