Back in 2004, the U.S. Supreme Court recognized that an employer may be liable for a constructive discharge. Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). What’s constructive discharge? The employee must establish that working conditions have become so intolerable that a reasonable person in the employee’s position would have felt compelled to quit. The same remedies and damages—including punitive damages—are available as in the case of an actual firing.

On May 23, 2016, the Supreme Court resolved a split among the federal appeals courts about how much time an employee has to bring a constructive discharge claim. In Green v. Brennan, 578 U.S. _ (2016) Marvin Green, an African-American postmaster in the suburban Denver area, complained to the U.S. Postal Service that he had been denied a promotion because of his race. His supervisors allegedly retaliated by accusing Mr. Green of intentionally delaying delivery of the mail, a criminal offense, and other wrongdoing. A settlement agreement was signed where, in exchange for the Postal Service not filing any criminal charges, Mr. Green had to, as Justice Sotomayor’s opinion for the 7-1 Court describes, “either retire or report for duty in Wamsutter, Wyoming—population 451—at a salary considerably lower…” Rather than taking the lower-paying job in a remote location hundreds of miles away, Mr. Green chose to retire and, 41 days after submitting his notice of resignation and 96 days after signing the settlement agreement, he filed a complaint with the Postal Service EEO Counselor (an administrative prerequisite for federal employees) over the alleged constructive discharge.

The Postal Service persuaded the trial court and an intermediate federal appeals court that Mr. Green’s case should be thrown out as too late, since he did not contact the EEO counselor within 45 days of the last allegedly discriminatory act by the Postal Service—the settlement agreement—as required by the Equal Employment Opportunity Commission’s (EEOC) regulations. But the Supreme Court reversed, holding that that the final “matter alleged to be discriminatory” in a constructive discharge claim is the date of the employee’s resignation, not the date of the last discriminatory act, and that the clock starts to run when the employee submits the resignation, not the last day of work.

What this means to you: In 2015, 4,569 charges of discrimination alleging constructive discharge were filed with the the EEOC, as compared to 33,731 charges alleging an actual discriminatory discharge. The Green v. Brennan case gives employees more time to file constructive discharge claims, and may well result in more of them.

But employers are not powerless. Instead, they can make sure that workplace conditions could never objectively be viewed as “intolerable.” For example, employers must be vigilant to ensure that employees who file internal complaints or EEOC charges are not subject to retaliation. Prompt and stern disciplinary action should be taken against anyone who violates your organization’s policy prohibiting retaliation.

Creating a respectful workplace reduces harassment and bullying, discrimination and retaliation, which are not only illegal, but can also be symptoms of a larger leadership problem. To find out more about our national HR training programs or to book a workshop, please call 800-458-2778 or email

Posted 06-07-2016

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.